News: Asylum Application, Interview, and Employment Authorization for Applicants

<pre>[Federal Register Volume 84, Number 220 (Thursday, November 14, 2019)] [Proposed Rules] [Pages 62374-62424] From the Federal Register Online via the Government Publishing Office [<a href=”http://www.gpo.gov”>www.gpo.gov</a>] [FR Doc No: 2019-24293] [[Page 62373]]

Vol. 84

Thursday,

No. 220

November 14, 2019

Part IV

Department of Homeland Security

———————————————————————–

8 CFR Parts 208 and 274a

Asylum Application, Interview, and Employment Authorization for
Applicants; Proposed Rule

Federal Register / Vol. 84 , No. 220 / Thursday, November 14, 2019 /
Proposed Rules

[[Page 62374]]

———————————————————————–

DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 208 and 274a

[CIS No. 2648-19; DHS Docket No. USCIS-2019-0011] RIN 1615-AC27

Asylum Application, Interview, and Employment Authorization for
Applicants

AGENCY: Department of Homeland Security.

ACTION: Notice of proposed rulemaking.

———————————————————————–

SUMMARY: The U.S. Department of Homeland Security (DHS) is proposing to
modify its current regulations governing asylum applications,
interviews, and eligibility for employment authorization based on a
pending asylum application.

DATES: Written comments and related material to this proposed rule,
including the proposed information collections, must be received to the
online docket via <a href=”http://www.regulations.gov”>www.regulations.gov</a>, or to the mailing address listed
in the ADDRESSES section below, on or before January 13, 2020.

ADDRESSES: You may submit comments on this proposed rule using 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, Washington, DC 20529. To ensure proper handling, please
reference DHS Docket No. USCIS-2019-0011 in your correspondence. Mail
must be postmarked by the comment submission deadline.

FOR FURTHER INFORMATION CONTACT: Maureen Dunn, Chief, Division of
Humanitarian Affairs, Office of Policy and Strategy, U.S. Citizenship
and Immigration Services, Department of Homeland Security, 20
Massachusetts Avenue NW, Suite 1100, Washington, DC 20529-2140;
Telephone (202) 272-8377.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Participation
II. Executive Summary
A. Major Provisions of the Regulatory Action
B. Summary of Costs and Benefits, and Transfer of Payment
III. Purpose of the Proposed Rule
A. Efforts To Reform the Asylum System
B. Need for Reform
IV. Background
A. Legal Authority
B. Eligibility for Asylum
C. Affirmative vs. Defensive Asylum Filings
D. Employment Authorization for Asylees and Asylum Applicants
E. Asylum and EAD Adjudications
V. Discussion of the Proposed Rule
A. 365-Day Waiting Period To Apply for Asylum-Application-Based
EADs
B. One-Year Filing Deadline
C. Criminal Bars to Eligibility
D. Procedural Reforms
E. Termination of Employment Authorization
1. Denial of Asylum Application by USCIS Asylum Officer
2. Termination After Denial by IJ
3. Automatic Extensions of Employment Authorizations and
Terminations
F. Aliens Who Have Established Credible or Reasonable Fear of
Persecution or Torture and Who Have Been Paroled Into the United
States
G. Illegal Entry
H. Effective Date of the Final Rule
VI. 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 Rule
3. Population
4. Transfers, Costs, and Benefits of This Proposed Rule
B. Regulatory Flexibility Act (RFA)
C. Congressional Review Act
D. Unfunded Mandates Reform Act of 1995 (UMRA)
E. Executive Order 13132 (Federalism)
F. Executive Order 12988 (Civil Justice Reform)
G. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
H. Family Assessment
I. National Environmental Policy Act (NEPA)
J. National Technology Transfer and Advancement Act
K. Executive Order 12630 (Governmental Actions and Interference
With Constitutionally Protected Property Rights)
L. Executive Order 13045 (Protection of Children From
Environmental Health Risks and Safety Risks)
M. Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use)
N. Paperwork Reduction Act (PRA)

Table of Abbreviations

ASC–Application Support Center
BCR–Biometrics Collection Rate
BFR–Biometrics Fee Ratio
BIA–Board of Immigration Appeals
BLS–Bureau of Labor Statistics
CAT–Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment
CBP–U.S. Customs and Border Protection
CFR–Code of Federal Regulations
CPMS–Customer Profile Management System
DHS–U.S. Department of Homeland Security
DOJ–Department of Justice
DOS–Department of State
E.O.–Executive Order
EAD–Employment Authorization Document
EOIR–Executive Office for Immigration Review
FBI–Federal Bureau of Investigation
FDNS–Fraud Detection and National Security Directorate
FIFO–First In/First Out
Form I-589–Application for Asylum and for Withholding of Removal
Form I-765–Application for Employment Authorization
Form I-863–Notice of Referral to Immigration Judge
FY–Fiscal Year
GSA–General Services Administration
HSA–Homeland Security Act of 2002
ICE–U.S. Immigration and Customs Enforcement
IIRIRA–Illegal Immigration Reform and Immigrant Responsibility Act
of 1996
INA–Immigration and Nationality Act
IRCA–Immigration Reform and Control Act of 1986
INS–Immigration and Naturalization Service
LCA–Labor Condition Application
LIFO–Last In, First Out
NEPA–National Environmental Policy Act
NTA–Notice to Appear
OMB–Office of Management and Budget
PM–Presidential Memorandum
PRA–Paperwork Reduction Act
RFA–Regulatory Flexibility Act
Secretary–Secretary of Homeland Security
UMRA–Unfunded Mandates Act of 1995
U.S.C.–United States Code
USCIS–U.S. Citizenship and Immigration Services

I. Public Participation

All interested parties are invited 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, legal, environmental, or federalism effects
that might result from this proposed rule. Comments must be submitted
in English or include an English translation. Comments that will
provide the most assistance to DHS 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 change.
Instructions: If you submit a comment, you must include the agency
name (U.S. Citizenship and Immigration Services) and the DHS Docket No.
USCIS-2019-0011 for this rulemaking. Please note that DHS has published
a notice of proposed rulemaking (NPRM)

[[Page 62375]]

entitled “Removal of 30-Day Processing Provision for Asylum Applicant-
Related Form I-765 Employment Authorization Applications,” DHS Docket
No. USCIS-2018-0001, separate from this NPRM. The two NPRMs include
distinct proposals, and for this proposed rule, DHS will only consider
comments submitted to Docket No. USCIS-2019-0011. 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 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 you make to DHS. DHS may withhold information
provided in comments from public viewing that it determines may impact
the privacy of an individual or is offensive. For additional
information, please read the Privacy Act notice that is available via
the link in the footer of <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-2019-0011. 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

DHS seeks to reduce incentives for aliens to file frivolous,
fraudulent, or otherwise non-meritorious asylum applications to obtain
employment authorization filed by asylum applicants seeking an
employment authorization document pursuant to 8 CFR 274a.12(c)(8)
(hereinafter “(c)(8) EAD” or “EAD”) or other non-asylum-based forms
of relief such as cancellation of removal, and to discourage illegal
entry into the United States. DHS also seeks to reduce incentives for
aliens to intentionally delay asylum proceedings in order to extend the
period of employment authorization based on the pending application,
and to simplify the adjudication process. DHS seeks to prevent those
asylum applicants who have committed certain crimes from obtaining a
(c)(8) employment authorization document, and to make the decision to
grant (c)(8) employment authorization to asylum applicants
discretionary, in line with USCIS’ statutory authority.
DHS is proposing to modify its current regulations governing asylum
applications, interviews, and eligibility for employment authorization
based on a pending asylum application. DHS proposes to modify its
regulations in the following areas:
<bullet> Extend the waiting period to apply for employment
authorization: DHS proposes that asylum applicants wait 365 calendar
days from the date their asylum applications are received by USCIS or
the Department of Justice, Executive Office for Immigration Review
(DOJ-EOIR) before they may apply for and receive an EAD. DHS also
proposes that USCIS will deny (c)(8) EAD applications if there are any
unresolved applicant-caused delays on the date of the EAD adjudication.
<bullet> Eliminate the issuance of recommended approvals for a
grant of affirmative asylum: DHS proposes that USCIS will no longer
issue recommended approvals for asylum. These are typically cases where
an asylum officer has made a preliminary determination to grant asylum
but has not yet received the results of the mandatory, confidential
investigation of the alien’s identity and background.
<bullet> Revise eligibility for employment authorization: DHS
proposes to exclude aliens who, absent good cause, entered or attempted
to enter the United States at a place and time other than lawfully
through a U.S. port of entry from eligibility for (c)(8) employment
authorization. DHS also proposes to exclude from eligibility for
employment authorization aliens who have failed to file for asylum
within one year of their last entry, unless and until an asylum officer
or Immigration Judge (IJ) determines that an exception to the statutory
requirement to file for asylum within one year applies. Because the
one-year filing deadline does not apply to unaccompanied alien
children, under this proposal, the one-year filing deadline would not
exclude unaccompanied alien children from eligibility to obtain an
employment authorization document. DHS also proposes to exclude from
eligibility aliens whose asylum applications have been denied by an
asylum officer or an IJ during the 365-day waiting period or before the
request for initial employment authorization has been adjudicated. DHS
further proposes to exclude from eligibility for employment
authorization aliens who have: (1) Been convicted of any aggravated
felony as defined under section 101(a)(43) of the INA, 8 U.S.C.
1101(a)(43), (2) been convicted of any felony in the United States or
serious non-political crime outside the United States or (3) been
convicted of certain public safety offenses in the United States. If an
applicant has unresolved domestic arrests or pending charges involving
domestic violence, child abuse, possession or distribution of
controlled substances, or driving under the influence of drugs or
alcohol, USCIS will decide at its discretion if it will grant the
applicant employment authorization, based on the totality of the
circumstances. DHS seeks public comment on whether these and additional
crimes should be included as bars to employment authorization. DHS also
proposes to make the decision to grant (c)(8) employment authorization
discretionary to align with the discretionary authority Congress
conferred in INA 208(d)(2), 8 U.S.C. 1158(d)(2). DHS is also clarifying
that only applicants for asylum who are located in the United States
may apply for employment authorization. DHS is adding a severability
clause in the event that, for whatever reason, any of the provisions
are not implemented.
—————————————————————————

See section 102 of the Controlled Substances Act (21 U.S.C.
802).
—————————————————————————

<bullet> Revise the provisions for EAD termination: DHS proposes
revising when (c)(8) employment authorization terminates. DHS proposes
that when a USCIS asylum officer denies an alien’s request for asylum,
any employment authorization associated with a pending asylum
application will be terminated effective on the date of asylum
application denial. If a USCIS asylum officer determines that the alien
is not eligible for asylum, the asylum officer will typically refer the
case to DOJ-EOIR. DHS proposes that if USCIS refers a case to DOJ-EOIR,
employment authorization would continue, and the alien would be
eligible to continue applying for EAD renewals, if needed, until the IJ
renders a decision on the asylum application. If the IJ denies the
asylum application, the alien’s employment authorization would
terminate 30 days after denial, unless the alien filed a timely appeal
with the Board of Immigration Appeals (BIA). Renewal of employment
authorization would be available to the alien during the pendency of
the appeal to the BIA. DHS, however, would prohibit employment
authorization during the Federal court appeal process, but the alien
could reapply for a (c)(8) EAD if the Federal court remanded the asylum
case to BIA.
<bullet> Change provisions for filing an asylum application: DHS
proposes to remove the requirement that USCIS return an incomplete
application within 30 days or have it deemed complete for

[[Page 62376]]

adjudication purposes. DHS also proposes that amending an asylum
application, requesting an extension to submit additional evidence
beyond a time that allows for its meaningful consideration prior to the
interview, or failing to appear to receive a decision as designated,
will constitute an applicant-caused delay, which, if not resolved by
the date the application for employment authorization is adjudicated,
will result in the denial of that employment authorization application.
DHS also is clarifying the effect of an applicant’s failure to appear
for either an asylum interview or a scheduled biometric services
appointment on a pending asylum application.
<bullet> Limit EAD validity periods: DHS proposes to clarify that
the validity period of (c)(8) employment authorization is discretionary
and further proposes that any (c)(8) EAD validity period, whether
initial or renewal, will not exceed increments of two years. USCIS may
set shorter validity periods for initial and renewal (c)(8) EADs.
<bullet> Incorporate biometrics collection requirements into the
employment authorization process for asylum seekers: DHS proposes to
incorporate biometrics collection into the employment authorization
process for asylum applicants, which would require applicants to appear
at an Application Support Center (ASC) for biometrics collection and
pay a biometric services fee. At present, biometrics collection
generally refers to the collection of fingerprints, photographs, and
signatures. Such biometrics collection will allow DHS to submit a
(c)(8) applicant’s fingerprints to the Federal Bureau of Investigation
(FBI) for a criminal history check, facilitate identity verification,
and facilitate (c)(8) EAD card production. DHS will require applicants
with a pending initial or renewal (c)(8) EAD on the effective date of
this rule to appear at an ASC for biometrics collection but DHS will
not collect the biometrics services fee from these aliens. DHS will
contact applicants with pending applications and provide notice of the
place, date and time of the biometrics appointment.
—————————————————————————

See <a href=”https://www.uscis.gov/forms/forms-information/preparing-your-biometric-services-appointment”>https://www.uscis.gov/forms/forms-information/preparing-your-biometric-services-appointment</a> (describing biometrics as
including fingerprints, photographs, and digital signature) (last
visited July 11, 2019).
—————————————————————————

<bullet> Clarify employment authorization eligibility for aliens
who have been paroled after being found to have a credible or
reasonable fear of persecution or torture: DHS is clarifying that
aliens who have been paroled after establishing a credible fear or
reasonable fear of persecution or torture under 8 CFR 208.30 may not
request a discretionary grant of employment authorization under 8 CFR
274a.12(c)(11), but may still apply for a (c)(8) EAD, if eligible. DHS
seeks public comment on this proposal and whether the (c)(11) category
(parole-based EADs) should be further limited, such as to provide
employment authorization only to those DHS determines are needed for
foreign policy, law enforcement, or national security reasons,
especially since parole is meant only as a temporary measure to allow
an alien’s physical presence in the United States until the need for
parole is accomplished or the alien can be removed.
Specify the effective date: DHS proposes to apply changes made by
this rule only to initial and renewal applications for employment
authorization under 8 CFR 274a.12(c)(8) and (c)(11) filed on or after
the effective date of the final rule, with limited exceptions. DHS will
apply two of the proposed ineligibility provisions–those relating to
criminal offenses and failure to file the asylum application within one
year of the alien’s last entry to the US–to initial and renewal
applications for employment authorization applications pending on the
effective date of the final rule. In order to implement the criminal
ineligibility provision, DHS will require applicants with an initial or
renewal (c)(8) EAD application pending on the effective date of this
rule to appear at an ASC for biometrics collection but DHS will not
collect the biometrics services fee from these aliens. DHS will contact
applicants with pending applications and provide notice of the place,
date and time of the biometrics appointment. If applicable, initial
applications filed before the effective date of this rule by members of
the Rosario class will not be subject to any of the provisions of this
proposed rule. DHS seeks public comment on whether other aliens,
such as those affected by the Settlement Agreement in American Baptist
Churches v. Thornburgh, 760 F. Supp. 796 (N.D.Cal.1991), or those whose
asylum applications predate the 1995 asylum reforms, should be subject
to all, some or none of the provisions in this rule.
—————————————————————————

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. DHS published a
proposed rule to remove this timeframe on September 9, 2019, where
it proposed to grandfather into the 30-day adjudication timeframe
those class members who filed their initial EAD applications prior
to the effective date of any final rule that changes the 30-day DHS
timeline. To ensure compliance with the court order and consistency
with the 30-day proposed rule, USCIS further proposes not to apply
this rule to any initial EAD application filed by a Rosario class
member that is pending as of the effective date of this rule, so
long as the Rosario injunction remains in effect. USCIS has not
included proposed regulatory text to this effect, but would include
such text in the event that members of the Rosario class remain as
of the date of publication of a final rule.
—————————————————————————

DHS is updating the regulations to reflect the amendments made by
this proposed rule, and proposing revisions to existing USCIS
information collections to accompany the proposed regulatory changes.

A. Major Provisions of the Regulatory Action

DHS proposes to include the following major changes:
<bullet> Amending 8 CFR 208.3, Form of application. The amendments
to this section propose to remove the language providing that an
application for asylum will automatically be deemed “complete” if
USCIS fails to return the incomplete application to the alien within a
30-day period. This provision is inconsistent with how all other
applications and petitions for immigration benefits are treated,
creates an arbitrary circumstance for treating a potentially incomplete
asylum application as complete, and imposes an unnecessary
administrative burden on USCIS. DHS proposes to conform its current
process for determining when an asylum application is received and
complete to the general rules governing all other immigration benefits
under 8 CFR 103.2, in addition to the specific asylum rules under 8 CFR
208.3 and 208.4. The regulations at 8 CFR 103.2(a)(7) state that USCIS
will record the receipt date as of the actual date the benefit request
is received at the designated filing location, whether electronically
or in paper, provided that it is signed with a valid signature,
executed, and filed in compliance with the regulations governing that
specific benefit request. If a fee is required, the benefit request
must also include the proper fee. Benefit requests not meeting these
acceptance criteria are rejected at intake. Rejected benefit requests
do not retain a filing date.
<bullet> Amending 8 CFR 208.4, Filing the application. The proposed
amendments to this section provide that a request to amend a pending
application for asylum or to supplement such an application may be
treated as an applicant-caused delay, and if unresolved on the date the
employment authorization application

[[Page 62377]]

is adjudicated, will result in the denial of the application for
employment authorization.
<bullet> Amending 8 CFR 208.7, Employment authorization.
—————————————————————————

DHS has published a notice of proposed rulemaking (NPRM)
entitled “Removal of 30-Day Processing Provision for Asylum
Applicant-Related Form I-765 Employment Authorization
Applications,” DHS Docket No. USCIS-2018-0001, separate from this
NPRM, which addresses application processing times. Processing times
are therefore not addressed here.
—————————————————————————

[cir] Jurisdiction. The proposed amendments to this section clarify
that USCIS has jurisdiction over all applications for employment
authorization based on pending or approved applications for asylum.
[cir] 365-day Waiting Period. The proposed amendments to this
section also replace the 150-day waiting period and the 180-day asylum
EAD clock. The proposed amendments will make asylum applicants eligible
to apply for employment authorization 365 calendar days from the date
their asylum application is received. The 365-day period was based on
an average of the current processing times for asylum applications
which can range anywhere from six months to over 2 years, before there
is an initial decision, especially in cases that are referred to DOJ-
EOIR from an asylum office. The amendments propose that if any
unresolved applicant-caused delays in the asylum adjudication exist on
the date the (c)(8) EAD application is adjudicated, the EAD application
will be denied. Consistent with the current regulation, DHS also
proposes to exclude from eligibility aliens whose asylum applications
have been denied by an asylum officer or an IJ during the waiting
period of at least 365-days or before the adjudication of the initial
request for employment authorization.
[cir] One Year Filing Deadline. The proposed amendments to this
section also exclude from eligibility for employment authorization
aliens who have failed to file for asylum within one year unless and
until an asylum officer or IJ determines that an exception to the
statutory requirement to file for asylum within one year applies.
[cir] Illegal Entry. The proposed amendments to this section also
make any alien who entered or attempted to enter the United States at a
place and time other than lawfully through a U.S. port of entry
ineligible to receive a (c)(8) EAD, with limited exceptions.
[cir] Criminal convictions. The rule proposes amendments to this
section include excluding from (c)(8) EAD eligibility any alien who has
(1) been convicted of an aggravated felony as described in section
101(a)(43) of the INA, 8 U.S.C. 1101(a)(43), (2) been convicted of any
felony in the United States, (3) been convicted of a serious non-
political crime outside the United States, (4) been convicted in the
United States of domestic violence or assault (except aliens who have
been battered or subjected to extreme cruelty and who were not the
primary perpetrators of violence in their relationships), child abuse
or neglect; possession or distribution of controlled substances; or
driving or operating a motor vehicle under the influence of alcohol or
drugs, regardless of how the offense is classified by the state, local,
or tribal jurisdiction. USCIS will consider, on a case-by-case basis,
whether an alien who has unresolved domestic charges or arrests that
involve domestic violence, child abuse, possession or distribution of
controlled substances, or driving under the influence of drugs or
alcohol, warrant a favorable exercise of discretion for a grant of
employment authorization.
—————————————————————————

See 18 U.S.C. 3156(a)(3) (the term “felony” means an
offense punishable by a maximum term of imprisonment of more than
one year).
—————————————————————————

[cir] Recommended Approvals. The proposed amendments to this
section also remove the language referring to “recommended
approvals.” Under this proposal, USCIS would no longer issue grants of
recommended approvals as a preliminary decision for affirmative asylum
adjudications.
[cir] EAD Renewals. The proposed amendments would permit renewals
during the pendency of the asylum application, including in immigration
court and at the BIA, for such periods as determined by USCIS in its
discretion, but not to exceed increments of two years.
[cir] Submission of biometrics. The proposed amendments would
require applicants to submit biometrics at a scheduled biometrics
services appointment for all initial and renewal applications for
employment authorization. DHS will require applicants with a pending
initial or renewal (c)(8) EAD on the effective date of this rule to
appear at an ASC for biometrics collection but DHS will not collect the
biometrics services fee from these aliens. DHS will contact applicants
with pending applications and provide notice of the place, date and
time of the biometrics appointment.
[cir] Termination After Denial by USCIS Asylum Officer. The
proposed amendments to this section provide that when a USCIS asylum
officer denies an alien’s request for asylum any employment
authorization associated with a pending asylum application, including
any automatic extension of employment authorization, will be terminated
effective on the date the asylum application is denied. If a USCIS
asylum officer determines that the alien has no lawful immigration
status and is not eligible for asylum, the asylum officer will refer
the case to DOJ-EOIR and place the alien in removal proceedings.
Employment authorization will be available to the alien while in
removal proceedings and the application for asylum is under review
before an IJ.
[cir] Termination After Denial by an IJ or the BIA. The rule
proposes that if USCIS refers a case to DOJ-EOIR, employment
authorization would continue for 30-days following the date that the IJ
denies the asylum application to account for a possible appeal of the
denial to the BIA. If the alien files a timely appeal, employment
authorization would continue, and the alien would be able to file a
renewal EAD application, if otherwise eligible. Employment
authorization would be prohibited during the Federal court appeal
process, but the alien could request a (c)(8) EAD if the case is
remanded to DOJ-EOIR for a new decision.
[cir] Eligibility. The amendments to the section also clarify
existing USCIS policy that only an applicant who is in the United
States may apply for employment authorization.
[cir] Severability. The amendments also include a severability
clause. This section is drafted with provisions separated into distinct
parts. In the event that any provision is not implemented for whatever
reason, DHS intends that the remaining provisions be implemented as an
independent rule in accordance with the stated purpose of this rule.
<bullet> Amending 8 CFR 208.9, Procedure for interview before an
asylum officer. The amendments to this section clarify that an
applicant’s failure to appear to receive and acknowledge receipt of the
decision following an interview and an applicant’s request for an
extension to submit additional evidence are applicant-caused delays for
purposes of eligibility for employment authorization. The amendments
also remove references to the “Asylum EAD clock.” This section is
further amended to provide that documentary evidence must be submitted
no later than 14 calendar days before the interview with an asylum
officer takes place to improve administrative efficiency and aid in the
meaningful examination and exploration of evidence in preparation for
and during the interview. As a

[[Page 62378]]

matter of discretion, the asylum officer may consider evidence
submitted within the fourteen (14) calendar days in advance of the
interview date or may grant the applicant a brief extension of time
during which the applicant may submit additional evidence.
<bullet> Amending 8 CFR 208.10, Failure to appear for an interview
before an asylum officer or for a biometric services appointment for
the asylum application. The amendments to this section seek to clarify
that an asylum applicant’s failure to appear for an asylum interview or
biometric services appointment may lead to referral or dismissal of the
asylum application, and may be treated as an applicant-caused delay
affecting eligibility for employment authorization. In addition, the
rule clarifies that USCIS is not obligated to send any notice to the
applicant about his or her failure to appear at a scheduled biometrics
appointment or an asylum interview as a prerequisite to making a
decision on the application, which may include dismissing the asylum
application or referring it to an IJ. These amendments are intended to
facilitate more timely and efficient case processing when applicants
fail to appear for essential appointments. Finally, the amendments
replace references to fingerprint processing and fingerprint
appointments with the term presently used by USCIS–“biometric
services appointment.”
<bullet> Amending 8 CFR 274a.12, Classes of aliens authorized to
accept employment. The amendments to this section remove the language
in 8 CFR 274a.12(c)(8) referring to “recommended approvals.” The
amendments also delete an obsolete reference to the Commissioner of the
former Immigration and Naturalization Service (INS) and replace it with
a reference to USCIS. Amendments to this section also clarify that
aliens who have been paroled into the United States after being found
to have a credible fear or reasonable fear of persecution or torture
may apply for employment authorization under 8 CFR 274a.12(c)(8), if
eligible, but may not apply under 8 CFR 274a.12(c)(11) (parole-related
EADs). The amendments also provide that employment authorization will
not be granted if a denial of an asylum application is under judicial
review, in conformity with amendments proposed at 8 CFR 208.7. DHS
seeks public comment on this proposal and whether the (c)(11) category
(parole-based EADs) should be further limited, such as to provide
employment authorization only to those DHS determines are needed for
foreign policy, law enforcement, or national security reasons,
especially since parole is meant only as a temporary measure to allow
an alien’s physical presence in the United States until the need for
parole is accomplished or the alien can be removed.
<bullet> Amending 8 CFR 274a.13, Application for employment
authorization. The proposed amendments to this section remove
unnecessary references to the supporting documents required for
submission with applications for employment authorization based on a
pending asylum application and clarify that such employment
authorization applications, like all other applications, petitions, or
requests for immigration benefits, must be filed on the form designated
by USCIS, in accordance with the form instructions, and along with any
applicable fees. DHS is also proposing to amend 8 CFR 274a.13(a)(1) so
that USCIS has discretion to grant applications for employment
authorization filed by asylum applicants pursuant to 8 CFR
274a.12(c)(8) in keeping with its discretionary statutory authority
under INA 208(d)(2), 8 U.S.C. 1158(d)(2). To conform the current
automatic extension and termination provisions to the changes proposed
under 8 CFR 208.7(b), the amendments to this section provide that any
employment authorization granted under 8 CFR 274a.12(c)(8) that was
automatically extended pursuant 8 CFR 274a.13(d)(1) will automatically
terminate on the date the asylum officer, IJ, or the BIA denies the
asylum application.
<bullet> Amending 8 CFR 274a.14, Termination of employment
authorization. For purposes of clarity, the amendment to this section
adds a new paragraph at 8 CFR 274a.14(a)(1) that cross-references any
automatic EAD termination provision elsewhere in DHS regulations,
including the automatic termination provisions being proposed by this
rule in 8 CFR 208.7(b).
<bullet> Effective date: With limited exceptions, the rules in
effect on the date of filing form I-765 will govern all initial and
renewal applications for a (c)(8) EAD based on a pending asylum
application and a (c)(11) EAD based on a grant of parole after
establishing a credible fear or reasonable fear of persecution or
torture. The criminal provisions and the failure to file the asylum
application within one year of last entry will apply to initial and
renewal EAD applications pending on the date the final rule is
published. In order to implement the criminal ineligibility provision,
DHS will require applicants with a pending initial or renewal (c)(8)
EAD on the effective date of this rule to appear at an ASC for
biometrics collection but DHS will not collect the biometrics services
fee from these aliens. DHS will provide notice of the place, date and
time of the biometrics appointment to applicants with pending (c)(8)
EAD application. If applicable, initial (c)(8) EAD applications filed
before the effective date by members of the Rosario class would not be
affected by this proposed rule. DHS will allow aliens with pending
asylum applications that have not yet been adjudicated and who already
have received employment authorization before the final rule’s
effective date to retain their (c)(8) employment authorization until
the expiration date on their EAD, unless the employment authorization
is terminated or revoked on grounds in the existing regulations. DHS
will also allow aliens who have already received employment
authorization before the final rule’s effective date under the (c)(11)
eligibility category based on parole/credible fear to retain that
employment authorization until their EAD expires, unless the employment
authorization is terminated or revoked on grounds in the existing
regulations. The proposals in this rule will not impact the
adjudication of applications to replace lost, stolen, or damaged (c)(8)
or (c)(11) EADs.

B. Summary of Costs, Benefits, and Transfer Payments

This proposed rule amends the (c)(8) EAD system primarily by
extending the period that an asylum applicant must wait in order to be
employment authorized, and by disincentivizing asylum applicants from
causing delays in the adjudication of their asylum application. The
Department has considered that asylum applicants may seek unauthorized
employment without possessing a valid employment authorization
document, but does not believe this should preclude the Department from
making procedural adjustments to how aliens gain access to a
significant immigration benefit. The provisions seek to reduce the
incentives for aliens to file frivolous, fraudulent, or otherwise non-
meritorious asylum applications primarily to obtain employment
authorization and remain for years in the United States for economic
purposes
The quantified maximum population this rule would apply to about
305,000 aliens in the first year the rule could take effect and about
290,000 annually thereafter. DHS assessed the potential impacts from
this rule overall, as well as the individual provisions, and provides
quantitative estimates of such

[[Page 62379]]

impacts where possible and relevant. For the provisions involving
biometrics and the removal of recommended approvals, the quantified
analysis covers the entire populations. For the 365-day EAD filing time
proposal, the quantified analysis also covers the entire population;
however, DHS relies on historical data to estimate the costs for
affirmative cases and certain assumptions to provide a maximum
potential estimate for the remaining affected population. For the
provisions that would potentially end some EADs early, DHS could
estimate only the portion of the costs attributable to affirmative
cases because DHS has no information available to estimate the number
of defensive cases affected.
DHS provides a qualitative analysis of the provisions proposing to
terminate EADs earlier for asylum cases denied/dismissed by an IJ;
remove employment eligibility for asylum applicants under the (c)(11)
category, and; bar employment authorization for asylum applicants with
certain criminal history, who did not enter at a U.S. port of entry, or
who, with little exception, did not file for asylum within one year of
their last arrival to the United States. As described in more detail in
the unquantified impacts section, DHS does not have the data necessary
to quantify the impacts of these provisions.
To take into consideration uncertainty and variation in the wages
that EAD holders earn, all of the monetized costs rely on a lower and
upper bound, benchmarked to a prevailing minimum wage and a national
average wage, which generates a range. Specific costs related to the
provisions proposed are summarized in Table 1. For the provisions in
which impacts could be monetized, the single midpoint figure for the
wage-based range is presented.
—————————————————————————

The populations reported in Table 1 reflect the maximum
population that would be covered by the provision. Some of the
populations that would incur monetized impacts are slightly
different due to technical adjustments.

Table 1–Summary of Costs and Transfers of the Proposed Rule
————————————————————————
Annual costs and transfers (mid-
Provision summary point)
————————————————————————
I. Quantified:
365-day EAD filing wait period Population: 39,000.
(for DHS affirmative asylum Cost: $542.7 million (quantified
cases and partial estimates impacts for 39,000 of the 153,458
for DHS referrals to DOJ). total population).
Reduction in employment tax
transfers: $83.2 million
(quantified impacts for 39,000 of
the 153,458).
Cost basis: Annualized equivalence
cost.
Summary: Lost compensation for a
portion of DHS affirmative asylum
cases that benefitted from initial
EAD approvals who would have to
wait longer to earn wages under the
proposed rule; nets out cost-
savings for persons who would no
longer file under the rule;
includes partial estimate of DHS
referral cases to DOJ-EOIR and the
apropos estimated tax transfers. It
does not include impacts for
defensively filed cases.
Biometrics requirement…….. Population for initial and renewal
EADs: 289,751.
Population for pending EADs: 14,451.
Cost: $37,769,580.
Reduction in employment tax
transfers: None.
Cost basis: Maximum costs of the
provision, which would apply to the
first year the rule could take
effect.
Summary: For initial and renewal
EADs, there would be time-related
opportunity costs plus travel costs
of submitting biometrics, as well
as $85 fee for (c)(8) I-765 initial
and renewal populations subject to
the biometrics and fee
requirements. A small filing time
burden to answer additional
questions and read associated form
instructions in the I-765 is
consolidated in this provision’s
costs. There would also be time-
related opportunity costs plus
travel costs of submitting
biometrics for EADs pending on the
effective date of the final rule.
Eliminate recommended Population: 1,930 annual.
approvals.
Cost: $13,907,387.
Reduction in employment tax
transfers: $2,127,830.
Cost basis: Annualized equivalence
cost.
Summary: Delayed earnings and tax
transfers that would have been
earned for an average of 52
calendar days earlier with a
recommended approval.
Terminate EADs if asylum Population: 575 (current and
application denied/dismissed future).
(DHS).
Cost: $31,792,569.
Reduction in employment tax
transfers: $4,864,263.
Cost basis: Maximum costs of the
provision, which would apply to the
first year the rule could take
effect.
Summary: Forgone earnings and tax
transfers from ending EADs early
for denied/dismissed DHS
affirmative asylum applications.
This change would affect EADs that
are currently valid and EADs for
affirmative asylum applications in
the future that would not be
approved. DHS acknowledges that as
a result of this proposed change,
businesses that have hired such
workers would incur labor turnover
costs earlier than without this
rule.
365-day EAD filing wait period Population: 114,458.
(for the residual population). Cost: $1,189.6 million-$3,600.4
million (quantified impacts for the
remaining 114,458 of the 153,458).
Reduction in employment tax
transfers: $182.0 million-$550.9
million (quantified impacts for the
remaining 114,458 of the 153,458).
Cost basis: Annualized equivalence
cost.
Summary: Lost compensation for the
population of approved annual EADs
for which DHS does not have data to
make a precise cost estimate; The
costs reported are a maximum
because the potential impact is
based on the maximum impact of 151
days; in reality there would be
lower-cost segments to this
population and filing-cost savings
as well.
II. Unquantified:
Revise (c)(11) category from I- Population: 13,000.
765. Cost: delayed/foregone earnings.
Cost basis; NA.

[[Page 62380]]

Summary: DHS does not know how many
of the actual population will apply
for an EAD via the (c)(8) I-765,
but the population would be zero at
a minimum and 13,000 at a maximum,
with a mid-point of 6,500. The
population would possibly incur
delayed earnings and tax transfers
by being subject to the 365-day EAD
clock (it is noted that this
population would also incur costs
under the biometrics provision,
above), or lost earnings if they do
not apply for a (c)(8) EAD. There
is potentially countervailing cost-
savings due to a reduced pool of
filers under the proposed rule.
Criminal activity/illegal DHS is unable to estimate the number
entry bar. of aliens impacted. Impacts could
involve forgone earnings and lost
taxes.
Adjudication of pending (c)(8) DHS cannot determine how many of the
I-765 applications under the 14,451 pending EAD filings would be
criminal and one-year-filing impacted by the criminal and one-
provisions. year-filing provisions. Impacts
could involve forgone earning and
tax transfers.
One-year filing deadline…… Some portion of the 8,472 annual
filing bar referrals could be
impacted, which could comprise
deferred/delayed or forgone earning
and tax transfers. DHS does not
have data on filing bar cases
referred to DOJ-EOIR.
Terminate EADs if asylum DOJ-EOIR has denied an average of
application denied/dismissed almost 15,000 asylum cases
(DOJ-EOIR). annually; however, DHS does not
have data on the number of such
cases that have an EAD. Costs would
involve forgone earnings and tax
transfers for any such EADs that
would be terminated earlier than
they otherwise would, as well as
forgone future earnings and tax
transfers. DHS acknowledges that as
a result of this proposed change
businesses that have hired such
workers would incur labor turnover
costs earlier than without this
rule. Businesses unable to replace
these workers would also incur
productivity losses.
————————————————————————

For those provisions that affect the time an asylum applicant is
employed, the impacts of this rule would include both distributional
effects (which are transfers) and costs. The transfers would fall on
the asylum applicants who would be delayed in entering the U.S. labor
force or who would leave the labor force earlier than under current
regulations. The 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, or, eligible to work lawfully, possibly in the form
of additional work hours or the direct and indirect added costs
associated with 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 or who would have
continued to employ asylum applicants had they been in the labor market
longer, but were unable to find available replacement labor. These
companies would incur a cost, as they would be losing the productivity
and potential profits the asylum applicant would have provided.
Companies may also incur opportunity costs by having to choose the next
best alternative to the immediate labor the asylum applicant would have
provided and by having to pay workers to work overtime hours. 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, but estimated the
maximum monetized impact of this rule in terms of delayed/lost labor
compensation. 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 $4,461.9 million (annualized at
7%) 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 $4,461.9 million is the estimated
monetized cost of the rule, and $0 is the estimated 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 $682.9
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 the provisions that
affect the amount of time an asylum applicant is employed. USCIS notes
that given that the U.S. unemployment rate is hovering around a 50-year
low–at 3.7% as of August 2019–it could be possible that employers may
face difficulties finding reasonable labor substitutes. DHS does note
that an alternative measure of the unemployment rate from the Bureau of
Labor Statistics (the U-6) provides additional information on the labor
market not found in the official unemployment rate (the U-3). The U-6
rate is a broader measure of labor underutilization and takes into
account workers not included in the official U-3 rate that could
potentially benefit from this rule. For example, the U-6 rate considers
persons who are neither working nor looking for work but indicate they
want and are available for a job and have looked for work sometime in
the past twelve months and also considers part-time workers who
otherwise want and are available for full time employment. The U-6 rate
shows unemployment at 7.2 percent, which is much higher than the
official U-3 rate of 3.7 percent.
—————————————————————————

The full definition of the U-3 and U-6 unemployment rates
can be found on the Bureau of Labor Statistics (BLS) website under
the “Local Area Unemployment Statistics (LAUS),” at: <a href=”https://www.bls.gov/lau/stalt.htm”>https://www.bls.gov/lau/stalt.htm</a>. The actual figures for the U-3 and U-6
unemployment rates are found in table A-15, “Alternative Measures
of Labor Underutilization,” in the Economic News Release Archives
at: <a href=”https://www.bls.gov/news.release/archives/empsit_09062019.htm”>https://www.bls.gov/news.release/archives/empsit_09062019.htm</a>.
—————————————————————————

[[Page 62381]]

employment, were working part time because their hours had been reduced
or they were unable to find full-time jobs. In addition, BLS reports
for August 2019 that 1.6 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. They were not counted as unemployed in the official U-
3 unemployment rate because they had not searched for work in the 4
weeks preceding the BLS survey, but are counted in the U-6 rate.
The U-6 rate provides additional evidence that U.S. workers might be
available to substitute into the jobs that asylum applicants currently
hold.
—————————————————————————

See Table A-8, “Employed Persons by Class of Worker and
Part-Time Status”, Persons at work part time for economic reasons:
<a href=”https://www.bls.gov/news.release/archives/empsit_09062019.htm”>https://www.bls.gov/news.release/archives/empsit_09062019.htm</a>.
See Table A-16, “Persons not in the labor force and
multiple jobholders by sex, not seasonally adjusted”, Persons
marginally attached to the labor force: <a href=”https://www.bls.gov/news.release/archives/empsit_09062019.htm”>https://www.bls.gov/news.release/archives/empsit_09062019.htm</a>.
—————————————————————————

Because the biometrics requirement proposed in this rule is a cost
to applicants and not a transfer, its minimum value of $27.17 million
is the minimum cost of the rule. The range of impacts described by
these two scenarios, plus the consideration of the biometrics costs,
are summarized in Table 2 below (Table 2A and 2B capture the impacts a
3 and 7 percent rates of discount, in order).

Table 2A–Summary of Range of Monetized Annualized Impacts at 3%
——————————————————————————————————————————————————–
Scenario: No replacement labor Scenario: All asylum applicants Primary
found for asylum applicants replaced with other workers (average of the
——————————————————————— highest high
Category Description and the lowest
Low wage High wage Low wage High wage low, for each
row)
——————————————————————————————————————————————————–
Transfers:
Transfers–Compensation……… Compensation transferred $0.00 $0.00 $1,473,953,451 $4,461,386,308 $2,230,693,154
from asylum applicants to
other workers (provisions:
365-day wait + end EADs
early + end recommended
approvals).
Transfers–Taxes……………. Lost employment taxes paid 225,587,337 682,771,643 0.00 0.00 341,385,822
to the Federal Government
(provisions: 365-day wait +
end EADs early + end
recommended approvals).
Costs:
Cost Subtotal–Biometrics……. Biometrics Requirements….. 27,154,124 45,726,847 27,154,124 45,726,847 36,440,486
Cost Subtotal–Lost Productivity Lost compensation used as 1,473,953,451 4,461,386,308 0.00 0.00 2,230,693,154
proxy for lost productivity
to companies (provisions:
365-day wait + end EADs
early + end recommended
approvals).
————————————————————————————-
Total Costs…………….. ………………………. 1,501,107,576 4,507,113,155 27,154,124 45,726,847 2,267,133,639
——————————————————————————————————————————————————–

Table 2B–Summary of Range of Monetized Annualized Impacts at 7%
——————————————————————————————————————————————————–
Scenario: No replacement labor Scenario: All asylum applicants Primary
found for asylum applicants replaced with other workers (average of the
——————————————————————— highest high
Category Description and the lowest
Low wage High wage Low wage High wage low, for each
row)
——————————————————————————————————————————————————–
Transfers:
Transfers–Compensation……… Compensation transferred 0.00 0.00 1,474,123,234 4,461,900,172 2,230,950,086
from asylum applicants to
other workers (provisions:
365-day wait + end EADs
early + end recommended
approvals).
Transfers–Taxes……………. Lost employment taxes paid 225,613,314 682,850,264 0 0 341,425,132
to the Federal Government
(provisions: 365-day wait +
end EADs early + end
recommended approvals).
Costs:
Cost Subtotal–Biometrics……. Biometrics Requirements….. 27,171,858 45,766,847 27,171,858 45,766,847 36,469,352
Cost Subtotal–Lost Productivity Lost compensation used as 1,474,123,234 4,461,900,172 0.00 0.00 2,230,950,086
proxy for lost productivity
to companies (provisions:
365-day wait + end EADs
early + end recommended
approvals).
————————————————————————————-
Total Costs…………….. ………………………. 1,501,295,093 4,507,667,018 27,171,858 45,766,847 2,267,419,438
——————————————————————————————————————————————————–

As required by Office of Management and Budget (OMB) Circular A-4,
Table 3 presents the prepared A-4 accounting statement showing the
impacts associated with this proposed regulation:

[[Page 62382]]

Table 3–OMB A-4 Accounting Statement
[$ millions, 2019] [Period of analysis: 2019-2028] ————————————————————————————————————————————————————————————————

————————————————————————————————————————————————————————————————
Category Primary estimate Minimum Maximum Source citation
estimate estimate (RIA, preamble, etc.)
————————————————————————————————————————————————————————————————
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……………….. The benefits potentially realized by the proposed rule are qualitative and accrue to a streamlined RIA.
system for employment authorizations for asylum seekers that would reduce fraud, improve overall
integrity and operational efficiency, and prioritize aliens with bona fide asylum claims. These
impacts stand to provide qualitative benefits to asylum seekers, the communities in which they
reside and work, the U.S. Government, and society at large. The proposed rule aligns with the
Administration’s goals of strengthening protections for U.S. workers in the labor market. The
proposed biometrics requirement would enhance identity verification and management.
—————————————————————————————————-
Costs:
Annualized monetized costs (discount rate (7%) $2,267.4 $27.17 $4,507.7 RIA.
in parenthesis).
(3%) 2,267.1 27.17 4,507.1 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 for the labor the asylum applicants RIA.
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. There could also be a loss of
Federal, state, and local income tax revenue.
Estimates of costs to proposals that would involve DOJ-EOIR defensively-filed asylum applications
and DHS-referrals could not be made due to lack of data. Potential costs would involve delayed/
deferred or forgone earnings, and possible lost tax revenue.
There would also be delayed or forgone labor income and tax transfers for pending EAD applicants
impacted by the criminal and one-year filing provisions, renewal applicants, transfers from the
(c)(11) group, and filing bar cases, all of whom would be subject to some of the criteria being
proposed; in addition, such impacts could also affect those who would be eligible currently for an
EAD, or have such eligibility terminated earlier, but would be ineligible for an EAD under the
proposed rule.
—————————————————————————————————-
Transfers:
Annualized monetized transfers: “on (7%) $0 $0 $0 RIA.
budget”.
(3%) 0 0 0
—————————————————————————————————-
From whom to whom?………………….. N/A N/A.
—————————————————————————————————-
Annualized monetized transfers: (7%) $2,231.0 $0 $4,461.9 RIA.
Compensation.
(3%) 2,230.7 0 4,461.4
—————————————————————————————————-
From whom to whom?………………….. Compensation transferred from asylum applicants to other workers (provisions: 365-day wait + end RIA.0.0.
EADs early + end recommended approvals). Some of the deferred or forgone earnings could be
transferred from asylum applicants to workers in the U.S. labor force or 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; these could involve
burdens to asylum applicants’ personal private or familial support system, but could also involve
public, private, or charitable benefits-granting agencies and non-governmental organizations
(NGOs).
—————————————————————————————————-
Annualized monetized transfers: Taxes…. (7%) $341.4 $0 $682.9 RIA.
(3%) 341.4 0 682.8
—————————————————————————————————-
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 (provisions: 365-day wait
+ end EADs early + end recommended approvals).
————————————————————————————————————————————————————————————————
Category Effects Source citation (RIA, preamble, etc.)
————————————————————————————————————————————————————————————————
Effects on state, local, and/or tribal DHS does not know how many low-wage workers could be removed from the labor force due to the RIA.
governments. proposed rule. There may also be a reduction in state and local tax revenue. Budgets and
assistance networks that provide benefits to asylum seekers could be impacted negatively if asylum
applicants request additional support.
Effects on small businesses……………… This proposed rule does not directly regulate small entities, but has indirect costs on small RFA.
entities. DHS acknowledges that ending EADs linked to denied DHS-affirmative asylum claims and
EADs linked to asylum cases under DOJ-EOIR purview would result in businesses that have hired such
workers incurring labor turnover costs earlier than without this rule. Such small businesses may
also incur costs related to a difficulty in finding workers that may not have occurred without
this rule.
Effects on wages……………………….. None. RIA.
Effects on growth………………………. None. RIA.
————————————————————————————————————————————————————————————————

[[Page 62383]]

The rule may also provide less incentive for those pursuing
unauthorized employment in the United States to use the asylum
application process to move into authorized employment status.
—————————————————————————

The proposed rule also aligns with the Administration’s goals of
strengthening protections for U.S. workers in the labor market. Several
employment-based visa programs require U.S. employers to test the labor
market, comply with recruiting standards, agree to pay a certain wage
level, and agree to comply with standards for working conditions before
they can hire an alien to fill the position. These protections do not
exist in the (c)(8) EAD program. While this rule would not implement
labor market tests for the (c)(8) program, it would put in place
mechanisms to reduce fraud and deter those without bona fide claims for
asylum from filing applications for asylum primarily to obtain
employment authorization or other, non-asylum-based forms of relief
from removal. DHS believes these mechanisms will protect U.S. workers.
The proposed biometrics requirement would provide a benefit to the
U.S. government by enabling DHS to know with greater certainty the
identity of aliens requesting EADs in connection with an asylum
application. The biometrics will allow DHS to conduct criminal history
background checks to confirm the absence of a disqualifying criminal
offense, to vet the applicant’s biometrics against government databases
(e.g., FBI databases) to determine if he or she matched any criminal
activity on file, to verify the applicant’s identity, and to facilitate
card production. Along with the proposals summarized above and
discussed in detail in the preamble and regulatory impact sections of
this proposed rule, DHS proposes to modify and clarify existing
regulations dealing with technical and procedural aspects of the asylum
interview process, USCIS authority regarding asylum, applicant-caused
delays in the process, and the validity period for EADs. These
provisions are not expected to generate costs. If adopted in a final
rule, the rules and criteria proposed herein relating to certain
criminal offenses and the one-year-filing bar would apply to pending
EAD applications. In order to implement the criminal ineligibility
provision, DHS will require applicants with a pending initial or
renewal (c)(8) EAD on the effective date of this rule to appear at an
ASC for biometrics collection but DHS will not collect the biometrics
services fee from these aliens. DHS will contact applicants with
pending EAD applications and provide notice of the place, date and time
of the biometrics appointment. Some aliens could be impacted and some
may not be granted an EAD as they would otherwise under current
practice, but DHS does not know how many could be impacted and does not
estimate costs for this provision.

III. Purpose of the Proposed Rule

On April 29, 2019, the White House issued a Presidential Memorandum
(PM) entitled, “Presidential Memorandum on Additional Measures to
Enhance Border Security and Restore Integrity to Our Immigration
System.” The White House, referencing the President’s earlier
Proclamations noted that “our immigration and asylum system is in
crisis as a consequence of the mass migration of aliens across our
southern border” and that the “emergency continues to grow
increasingly severe. In March, more than 100,000 inadmissible aliens
were encountered seeking entry into the United States. Many aliens
travel in large caravans or other large organized groups, and many
travel with children. The extensive resources required to process and
care for these individuals pulls U.S. Customs and Border Protection
personnel away from securing our Nation’s borders. Additionally,
illicit organizations benefit financially by smuggling illegal aliens
into the United States and encouraging abuse of our asylum procedures.
This strategic exploitation of our Nation’s humanitarian programs
undermines our Nation’s security and sovereignty. The purpose of this
memorandum is to strengthen asylum procedures to safeguard our system
against rampant abuse of our asylum process.”
—————————————————————————

Presidential Memorandum on AdditionalMeasures to Enhance
Border Security and Restore Integrity to Our Immigration System,
2019 Daily Comp. Pres. Doc. 251 (Apr. 29, 2019).
Id.

The PM directs the Secretary of Homeland Security to propose
regulations to bar aliens who have entered or attempted to enter the
United States unlawfully from receiving employment authorization prior
to being approved for relief and to immediately revoke the employment
authorization of aliens who are denied asylum or become subject to a
final order of removal.
Through this proposed rule, DHS seeks to address the national
emergency and humanitarian crisis at the border by (1) reducing
incentives for aliens to file frivolous, fraudulent, or otherwise non-
meritorious asylum applications intended primarily to obtain employment
authorization, or other forms of non-asylum based relief, and remain
for years in the United States due to the backlog of asylum cases, and
(2) disincentivizing illegal entry into the United States by proposing
that any alien who entered or attempted to enter the United States at a
place and time other than lawfully through a U.S. port of entry be
ineligible to receive a (c)(8) EAD, with limited exceptions. DHS is
also proposing administrative reforms that will ease some of the
administrative burdens USCIS faces in accepting and adjudicating
applications for asylum and related employment authorization.
—————————————————————————

Proclamation No. 9844, 84 FR 4949 (Feb. 15, 2019).
—————————————————————————

As explained more fully below, USCIS believes these reforms will
help mitigate the crisis that our immigration and asylum systems are
facing as a consequence of the mass migration of aliens across our
southern border, as well as improve the current asylum backlog,
helping to clear the way for meritorious asylum applications to be
received, processed, and adjudicated more quickly, and allowing USCIS
to issue employment authorizations more efficiently. The extensive
resources required to process and care for these individuals pulls
personnel away from securing our Nation’s borders. Additionally,
illicit organizations benefit financially by smuggling illegal aliens
into the United States and encouraging abuse of our asylum procedures.
This strategic exploitation of our Nation’s humanitarian programs
undermines our Nation’s security and

[[Page 62384]]

sovereignty. These interests, when weighed against any reliance
interest on behalf of impacted aliens, are greater, particularly
because of the large increase in number of those seeking asylum at the
border, which is operationally unsustainable for DHS long-term.
—————————————————————————

<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>.
Id.
—————————————————————————

It is the policy of the Executive Branch to manage humanitarian
immigration programs in a safe, orderly manner that provides access to
relief or protection from removal from the United States for aliens who
qualify, and that promptly denies benefits to and facilitates the
removal of those who do not. This rulemaking is part of a series of
reforms DHS is undertaking, in coordination with DOJ-EOIR, to improve
and streamline the asylum system, so that those with bona fide asylum
claims can be prioritized and extended the protections that the United
States has offered for over a century, including employment
authorization, to aliens legitimately seeking refuge from persecution
—————————————————————————

<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>.
—————————————————————————

A. Efforts To Reform the Asylum System

The Refugee Act of 1980, Public Law 96-212, 94 Stat. 102, was the
first comprehensive legislation to establish the modern refugee and
asylum system. Congress passed the Refugee Act mainly to replace
the ad hoc process that existed at the time for admitting refugees and
to provide a more uniform refugee and asylum process. The focus of
the Refugee Act was reforming the overseas refugee program. The Refugee
Act did not explicitly address how the United States should reform the
asylum process or handle the then-sudden influx of asylum seekers, such
as occurred with the Mariel boatlift–a mass influx of Cuban citizens
and nationals, many of whom with criminal histories, to the United
States in 1980. Congress also provided that any alien who had
applied for asylum before November 1, 1979, had not been granted
asylum, and did not have a final order of deportation or exclusion,
could obtain employment authorization.
—————————————————————————

Congress added the definition of refugee under section
101(a)(42) of the Act, 8 U.S.C. 1101(a)(42), based on the 1967
United Nations (U.N.) Protocol relating to the Status of Refugees,
19 U.S.T. 6223, TIAS No. 6577, 606 U.N.T.S. 267 (1967), which the
United States ratified in November of 1968. The Refugee Act also
made withholding of removal mandatory, authorized adjustment of
status for asylees and refugees, expanded the funding available for
domestic refugee assistance services, and barred eligibility for
asylum for aliens who were convicted of a serious crime, firmly
resettled, persecutors, or a danger to the security of the United
States.
See Public Law 96-212, 94 Stat. 102, Sec. 101(b) and S.
Rep. 96-256 (July 23, 1979), at pp. 141-143. Earlier treatment of
refugees came from the Displaced Persons Act of 1948, 62 Stat. 1009,
as amended, the Refugee Relief Act of 1953, 67 Stat. 400, and the
Refugee-Escapee Act of 1957, 71 Stat. 643.
See, e.g., Immigration Reform and Control Act of 1982:
Joint Hearing on H.R. 5872 and S. 2222 Before the Subcommittee on
Immigration, Refugees, and International Law, Committee on the
Judiciary, House of Representatives, and Subcommittee on Immigration
and Refugee Policy, Committee on the Judiciary, 97th Cong. 2nd Sess,
326-328 (Apr. 1 and 20, 1982) (statement of Attorney General William
French).
94 Stat. 102 at sec. 401(b) and (c).
—————————————————————————

In 1980, the then-INS issued an interim regulation implementing the
asylum provisions of the Refugee Act. This regulation provided that
an INS district director could authorize an applicant for asylum to
work, in six-month increments, if the alien had filed a non-frivolous
application for asylum. The regulation did not define what
constituted a “frivolous” filing. The regulation also excluded,
without explanation, the limitation on the size of the class of aliens
who could qualify for employment authorization (i.e., only aliens who
had applied for asylum before November 1, 1979, but had not been
granted asylum, and did not have a final order of deportation or
exclusion). As a result of the regulation, the class of aliens who
could seek employment authorization based on an asylum application was
interpreted to include past and future asylum seekers.
—————————————————————————

See Aliens and Nationality; Refugee and Asylum Procedures,
45 FR 37392 (June 2, 1980). This interim rule was not finalized
until 1983. See also Aliens and Nationality; Asylum Procedures, 48
FR 5885-01 (Feb. 9, 1983).
45 FR at 37394, section 208.4.4.
—————————————————————————

Congress, however, did not provide adequate resources or enact
legislation that would address the “pull” factors that led to
significant increases in illegal immigration and in asylum filings
following enactment of the Refugee Act. In addition, the
publication of two INS regulations–the 1986 implementing regulations
for the Immigration Reform and Control Act of 1986 (IRCA), Public Law
99-603 (Nov. 6, 1986) and the 1990 asylum regulations–further
incentivized illegal immigration and the filing of non-meritorious
asylum claims or other forms of relief because of the ease with which
aliens could obtain employment authorization, regardless of the basis
for the application for employment authorization. In the
implementing regulations for IRCA, INS provided that aliens could
receive an interim EAD if INS did not adjudicate the application for
employment authorization within 60 days (former 8 CFR 274a.12(c) and
(d)). The IRCA regulations also required asylum officers to give
employment authorization, in one-year increments, to any alien who had
filed a non-frivolous asylum application. In the 1990 asylum
regulation, INS also mandated that asylum officers give interim EADs to
any alien who had filed a non-frivolous asylum application, and that
asylum officers continue to renew employment authorization for the time
needed to adjudicate the asylum application (former 8 CFR
208.7(a)).
—————————————————————————

See, e.g., David A. Martin, Making Asylum Policy: The 1994
Reforms, 70 Wash. L. Rev. 725 (July 1995) and David A. Martin, The
1995 Asylum Reforms, Ctr. for Immigration Studies (May 1, 2000) for
a discussion of the history and consequences of the asylum reforms
in 1990s.
IRCA legalized many illegal aliens present in the United
States prior to 1986, created new temporary agricultural worker
programs, and mandated employment verification and employer
sanctions to address the problem of U.S. employers hiring illegal
immigrants. One of the main reasons Congress passed IRCA was its
growing concern over the large influx of aliens crossing our borders
illegally, particularly on the Southwest border, to find jobs. The
employer verification system and employer sanctions were designed to
address this concern by reducing the “pull” factor created by the
availability of higher paying jobs in the United States. See, e.g.,
H.R. Rep. No. 99-682(I) at pp. 5649-5654 (July 16, 1986) (Committee
explanation for the need for IRCA to control illegal immigration).
See Martin, supra note 2121, at p. 734; see also David A.
Martin, Reforming Asylum Adjudication: On Navigating the Coast of
Bohemia, 138 U. Pa. L. Rev. 1247 (May 1990) at pp. 1267-69, 1288-89,
and 1373.
DOJ final rule, Control of Employment of Aliens, 52 FR
16216-01 (May 1, 1987). The 60-day period was subsequently extended
to 90-days with the publication of the final rule, Powers and Duties
of Service Officers; Availability of Service Records, Control of
Employment of Aliens, 56 FR 41767-01 (Aug. 23, 1991).
DOJ INS also for the first time defined “frivolous” to
mean “manifestly unfounded or abusive.” See former 8 CFR 208.7(a)
(1991).
DOJ INS final rule, Aliens and Nationality; Asylum and
Withholding of Deportation Procedures, 55 FR 30674-01 (July 27,
1990).
—————————————————————————

While IRCA’s creation of the employer verification system and
employer sanctions was designed to reduce the “pull” factor created
by the availability of higher paying jobs in the United States, the
ability to get interim employment authorization within 90 days,
regardless of the basis for requesting employment authorization in the
first instance, had the exact opposite effect. In addition, because
the agency already had a backlog for adjudicating asylum applications,
it was unlikely any asylum application would be adjudicated within a
90-day timeframe, which virtually guaranteed that most asylum
applicants would be eligible for interim employment authorization.

[[Page 62385]]

The combined effect of the statutory employment authorization for
asylum applicants, the regulations, and insufficient agency resources
resulted in a greater influx of aliens, many of whom were not
legitimate asylum seekers, but instead merely sought to work in the
United States.
—————————————————————————

See Martin, supra note 21, at p. 733-36.
In 1994, Congress passed the Violent Crime Control and Law
Enforcement Act of 1994 (VCCLEA), Public Law 103-322, 108 Stat. 1796
(Sept. 13, 1994). As part of its findings, Congress stated “. . .
in the last decade applications for asylum have greatly exceeded the
original 5,000 annual limit provided in the Refugee Act of 1980,
with more than 150,000 asylum applications filed in fiscal year
1993, and the backlog of cases growing to 340,000.” VCCLEA, at sec.
130010(1).
See Martin, supra note 21, at p. 733-37.
—————————————————————————

In 1994, Congress passed the Violent Crime Control and Law
Enforcement Act of 1994 (VCCLEA), Public Law 103-322, 108 Stat. 1796
(Sept. 13, 1994), which provided for expedited exclusion proceedings
and summary deportation of aliens with failed asylum claims and
provided that no applicant for asylum would be entitled to employment
authorization unless the Attorney General (now Secretary of Homeland
Security) determined, as a matter of discretion, that employment
authorization was appropriate. Congress passed these amendments
mainly because the asylum system was being overwhelmed with asylum
claims, including frivolous and fraudulent claims filed merely to
obtain employment authorization. The hope was that the expedited
exclusion proceedings would reduce such claims. During consideration of
the VCCLEA, DOJ also conducted a review of the asylum process and
published regulations designed to reduce the asylum backlogs, eliminate
procedural hurdles that lengthened the process, and deter abuses in the
system. For the first time, DOJ implemented a waiting period for
asylum seekers–150 days–before they could apply for employment
authorization. DOJ based the timeframe on the 150-day processing goals
it had set for asylum officers and IJs to complete asylum cases.
—————————————————————————

See Public Law 103-322, 108 Stat. 1796, at sec. 130005.
See id. at sec. 130010(1) (findings of the Senate on the
need for reforms to the asylum process, including finding of a
backlog of cases up to 340,000); see also H.R. Conf. Rep. 103-711
(Aug. 21, 1994), at pp. 241-245 and 393-394.
DOJ INS final rule, Rules and Procedures for Adjudication
of Applications for Asylum or Withholding of Deportation and for
Employment Authorization, 59 FR 62284-01 (Dec. 5. 1994).
—————————————————————————

In 1996, Congress again amended section 208 when it passed the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA), Public Law 104-208, 110 Stat. 3009. Congress retained the
expedited exclusion (now removal) procedures to address the influx of
thousands of aliens seeking entry into the United States. Congress
also reformed the asylum provisions and codified some of the
administrative reforms INS made when it published the 1994 asylum
regulation. IIRIRA incorporated language that barred an alien not only
from eligibility for asylum, but also from any other immigration
benefits (such as when an alien filed a frivolous application),
added a one-year deadline to file for asylum, and codified INS’s
regulatory prohibition on asylum seekers being granted discretionary
employment authorization before a minimum of 180 days has passed from
the date of filing of the asylum application.
—————————————————————————

See, e.g., H.R. Conf. Rep. 104-828, title III, subtitle A
(1996).
8 U.S.C. 1158(d)(6) provides:
If the Attorney General determines that an alien has knowingly
made a frivolous application for asylum and the alien received the
notice under paragraph (4)(A), the alien shall be permanently
ineligible for any benefits under this Act, effective as of the date
of a final determination on such application.
DHS published an interim final rule implementing IIRIRA in
1997. See DOJ INS, Inspection and Expedited Removal of Aliens;
Detention and Removal of Aliens; Conduct of Removal Proceedings;
Asylum Procedures, 62 FR 10312-01 (Mar. 6, 1997). DOJ published a
separate final rule December 6, 2000 which finalized the provisions
related to the asylum process proposed in the DOJ INS and EOIR joint
rule, New Rules Regarding Proceedings for Asylum and Withholding of
Removal, 63 FR 31945 (June 11, 1998), and in response to comments to
the asylum procedures made in response to the IIRIRA interim final
rule.
—————————————————————————

B. Need for Reform

Since IIRIRA, there have been no major statutory changes to the
asylum provisions to address the immigration realities faced by the
United States today. However, since 2016, the United States has
experienced an unprecedented surge in the number of aliens who
enter the country unlawfully across the southern border. In Fiscal Year
2019, CBP apprehended over 800,000 aliens attempting to enter the
United States illegally. These apprehensions are more than double
of those in Fiscal Year 2018. If apprehended, many of these
individuals claim asylum and remain in the United States while their
claims are adjudicated. There is consistent historical evidence that
approximately 20 percent or less of such claims will be successful.
This surge in border crossings and asylum claims has placed a strain on
the nation’s immigration system. The large influx has consumed an
inordinate amount of the Department of Homeland Security’s resources,
which includes surveilling, apprehending, screening, and processing the
aliens who enter the country, detaining many aliens pending further
proceedings, and representing the United States in immigration court
proceedings. The surge has also consumed substantial resources at the
Department of Justice, whose immigration judges adjudicate asylum
claims and whose officials prosecute aliens who violate Federal
criminal law. The strain also extends to the judicial system, which
must handle petitions to review denials of asylum claims, many of which
can take years to reach final disposition, even when the claims for
asylum lack merit.
—————————————————————————

See CBP Southwest Border Total Apprehensions/Inadmissibles
at <a href=”https://www.cbp.gov/newsroom/stats/sw-border-migration”>https://www.cbp.gov/newsroom/stats/sw-border-migration</a>.
Id.
See CBP Enforcement Statistics at <a href=”https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics”>https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics</a>.
See Executive Office for Immigration Review Adjudication
Statistics “Asylum Decision Rates” (July 2019), <a href=”https://www.justice.gov/eoir/page/file/1104861/download”>https://www.justice.gov/eoir/page/file/1104861/download</a>.
—————————————————————————

In order to maintain the very integrity of the asylum system, it is
imperative that DHS take all necessary measures to create disincentives
to come to the United States for aliens who do not fear persecution on
the five protected grounds of race, religion, nationality, political
opinion, or particular social group, or torture. Fleeing poverty
and generalized crime in one’s home country does not qualify an
individual for asylum in the United States. See, e.g., Hui Zhuang v.
Gonzales, 471 F.3d 884, 890 (8th Cir. 2006) (“Fears of economic
hardship or lack of opportunity do not establish a well-founded fear of
persecution.”).
—————————————————————————

See, e.g., <a href=”https://www.wbur.org/cognoscenti/2018/08/08/why-do-migrants-flee-central-america-susan-akram”>https://www.wbur.org/cognoscenti/2018/08/08/why-do-migrants-flee-central-america-susan-akram</a>, <a href=”https://www.washingtonpost.com/world/national-security/hunger-not-violence-fuels-guatemalan-migration-surge-us-says/2018/09/21/65c6a546-bdb3-11e8-be70-52bd11fe18af_story.html?noredirect=on”>https://www.washingtonpost.com/world/national-security/hunger-not-violence-fuels-guatemalan-migration-surge-us-says/2018/09/21/65c6a546-bdb3-11e8-be70-52bd11fe18af_story.html?noredirect=on</a>; <a href=”https://time.com/longform/asylum-seekers-border/”>https://time.com/longform/asylum-seekers-border/</a>.
—————————————————————————

Statistics support DHS’s assertion that the vast majority of
protection claims are not motivated by persecution under the five
protected grounds or torture. The historic high in affirmative asylum
applications and credible fear receipts in FY 2018 is matched by a
historic low rate of approval of affirmative asylum applications and
credible fear claims in FY 2018.
—————————————————————————

USCIS Asylum Division Volume Projection Committee–FY 2020/
2021, June 2019.
Id.
—————————————————————————

As noted above, it is the policy of the Executive Branch to manage
our humanitarian immigration programs in a safe, orderly manner that
provides access to relief or protection from removal from the United
States for aliens who qualify, and that promptly

[[Page 62386]]

denies benefits to and facilitates the removal of those who do not.
Many protection applications appear to be coming from applicants
escaping poor economic situations and generalized violence rather than
the five protected grounds for asylum or torture. DHS is proposing more
stringent requirements for eligibility for employment authorization, in
order to disincentivize aliens who are not legitimate asylum seekers
from exploiting a humanitarian program to seek economic opportunity in
the United States.
—————————————————————————

<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>.
—————————————————————————

DHS believes that this rule stands alone as an important
disincentive for individuals use asylum as a path to seek employment in
the United States. DHS further believes that this rule will complement
broader interagency efforts to mitigate large-scale migration to the
U.S. Southern Border by precluding some asylum seekers from entering
the United States. These programs are strengthened by DHS making
important procedural adjustments to how those aliens who do enter the
United States gain access to such a significant immigration benefit as
employment authorization. Further, while some of these aliens may
disregard the law and work unlawfully in contravention to these
reforms, the Department does not avoid the establishment of regulatory
policies because certain individuals might violate the regulations.
—————————————————————————

On January 25, 2019, DHS announced certain aliens
attempting to enter the U.S. illegally or without documentation,
including those who claim asylum, will no longer be released into
the United States, where they often fail to file an asylum
application and/or disappear before an immigration judge can
determine the merits of any claim. Instead, these aliens will be
returned to Mexico until their hearing date. See “Policy Guidance
for Implementation of the Migrant Protection Protocols” (Jan.
2019), <a href=”https://www.dhs.gov/sites/default/files/publications/19_0129_OPA_migrant-protection-protocols-policy-guidance.pdf”>https://www.dhs.gov/sites/default/files/publications/19_0129_OPA_migrant-protection-protocols-policy-guidance.pdf</a>. On
July 15, 2019, DHS and DOJ announced a bar to eligibility for asylum
to any alien who enters or attempts to enter the United States
across the southern border, but who did not apply for protection
from persecution or torture where it was available in at least one
third country outside the alien’s country of citizenship,
nationality, or last lawful habitual residence through which he or
she transited en route to the United States. See “DHS and DOJ Issue
Third-Country Asylum Rule (July 2019), <a href=”https://www.dhs.gov/news/2019/07/15/dhs-and-doj-issue-third-country-asylum-rule”>https://www.dhs.gov/news/2019/07/15/dhs-and-doj-issue-third-country-asylum-rule</a>.
Notably, even the former INS remarked on the need for
reform, notwithstanding the possibility that aliens may simply
disregard the law and work illegally:
The Department also considered the claim that asylum applicants
will disregard the law and work without authorization. While this is
possible, it also is true that unlawful employment is a phenomenon
not limited to asylum applicants, but is found among many categories
of persons who have illegally entered or remained in the United
States. The Department does not believe that the solution to this
problem is to loosen eligibility standards for employment
authorization. This is particularly so because of the evidence that
many persons apply for asylum primarily as a means of being
authorized to work. These rules will discourage applications filed
for such reasons and thus enable the INS to more promptly grant
asylum–and provide work authorization–to those who merit relief .
. .
59 FR 62284-01, 62291.
—————————————————————————

Congress gave the Executive Branch the discretion to make
employment authorization available by regulation. The current
practice of granting employment authorization to aliens before they
have been determined eligible for asylum is a “pull” factor for the
illegal immigration of aliens who are ineligible for any immigration
status or benefit in the United States, and there is an urgent need for
reform. Employment authorization for foreign nationals seeking
asylum is not a right. It is a benefit which must be carefully
implemented in order to benefit those it is meant to assist.
—————————————————————————

INA sec. 208(d)(2).
See Martin, supra note 21.
—————————————————————————

IV. Background

A. Legal Authority

The Secretary of Homeland Security’s authority to propose the
regulatory amendments in this rule can be found in various provisions
of the immigration laws. Section 102 of the Homeland Security Act of
2002 (HSA) (Pub. L. 107-296, 116 Stat. 2135), 6 U.S.C. 112 and sections
103(a)(1) and (3) of the INA, 8 U.S.C. 1103(a)(1), (3), charge the
Secretary with the administration and enforcement of the immigration
and naturalization laws of the United States. Section 402(4) of the
HSA, 6 U.S.C. 202(4), expressly authorizes the Secretary, consistent
with 6 U.S.C. 236236236 (concerning visa issuance and refusal), to
establish and administer rules governing the granting of visas or other
forms of permission, including parole, to enter the United States to
individuals who are not U.S. citizens or lawful permanent residents.
See also 6 U.S.C. 271(a)(3), (b) (describing certain USCIS functions
and authorities). Section 208 of the INA, 8 U.S.C. 1158, gives the
Secretary the discretionary authority to grant asylum to an alien who
meets the definition of refugee under section 101(a)(42), 8 U.S.C.
1101(a)(42). Sections 235, 236, and 241 of the INA, 8 U.S.C. 1225,
1226, and 1231, govern the apprehension, inspection and admission,
detention and removal, withholding of removal, and release of aliens
encountered in the interior of the United States or at or between the
U.S. ports of entry. Section 274A of the INA, 8 U.S.C. 1324a, governs
employment of aliens who are authorized to be employed in the United
States by statute or in the discretion of the Secretary. The Secretary
proposes the changes in this rule under these authorities.
—————————————————————————

A refugee is defined under INA section 101(a)(42), 8 U.S.C.
1101(a)(42), as:
(A) Any person who is outside any country of such person’s
nationality or, in the case of a person having no nationality, is
outside any country in which such person last habitually resided,
and who is unable or unwilling to return to, and is unable or
unwilling to avail himself or herself of the protection of, that
country because of persecution or a well-founded fear of persecution
on account of race, religion, nationality, membership in a
particular social group, or political opinion, or
(B) in such special circumstances as the President after
appropriate consultation (as defined in section 1157(e) of this
title) may specify, any person who is within the country of such
person’s nationality or, in the case of a person having no
nationality, within the country in which such person is habitually
residing, and who is persecuted or who has a well-founded fear of
persecution on account of race, religion, nationality, membership in
a particular social group, or political opinion. . . . .
—————————————————————————

B. Eligibility for Asylum

Asylum is a discretionary benefit that can be granted by the
Secretary or Attorney General if the alien establishes, among other
things, that he or she has experienced past persecution or has a well-
founded fear of future persecution on account of race, religion,
nationality, membership in a particular social group, or political
opinion. Under the INA, certain aliens are barred from obtaining
asylum, including aliens who are persecutors, have been convicted of a
particularly serious crime (which includes aggravated felonies), have
committed serious nonpolitical crimes outside of the United States, who
are a danger to the security of the United States, have engaged in
certain terrorism-related activities or are members of terrorist
organizations, or were firmly resettled in a third country.
—————————————————————————

INA sec. 208(b), 8 U.S.C. 1158(b).
INA sec. 208(b)(2)(A), 8 U.S.C. 1158(b)(2)(A).
—————————————————————————

Aliens seeking asylum generally must apply for asylum within one
year from the date of their last arrival in the United States. An alien
who files for asylum after the one-year deadline is not eligible to
apply for asylum unless the Secretary or Attorney General, in his or
her discretion, excuses the late filing. For a late filing to be
excused, the alien must demonstrate that changed circumstances
materially affected the alien’s eligibility for asylum, or
extraordinary circumstances delayed

[[Page 62387]]

filing during the one-year period. Even if an alien meets all the
criteria for asylum, including establishing past persecution or a well-
founded fear of future persecution and any exceptions to late filing,
the Secretary or Attorney General can still deny asylum as a matter of
discretion.
—————————————————————————

The one-year deadline does not apply to an alien who is an
unaccompanied alien child, as defined in 6 U.S.C. 279(g). INA sec.
208(a)(2)(E), 8 U.S.C. 1158(a)(2)(E).
INA sec. 208(a)(2)(D), 8 U.S.C. 1158(a)(2)(D).
See INA sec. 208(b)(1), 240(c)(4)(ii); 8 U.S.C. 1158(b)(1),
1229a(c)(4)(ii).
—————————————————————————

Aliens who are granted asylum cannot be removed or returned to
their country of nationality or last habitual residence, are employment
authorized incident to their status, and may be permitted to travel
outside of the United States with prior consent from the Secretary.
Asylum can be terminated if the alien was not eligible for asylum
status at the time of the asylum grant or is otherwise no longer
eligible for asylum under the law.
—————————————————————————

INA sec. 208(c)(1), 8 U.S.C. 1158(c)(1).
INA sec. 208(c)(2), 8 U.S.C. 1158(c)(2).
—————————————————————————

C. Affirmative vs. Defensive Asylum Filings

To request asylum, an alien must file an application with either
USCIS or with the immigration court, using Form I-589, Application for
Asylum and for Withholding of Removal. If the immigration judge or the
Board of Immigration Appeals determines that an alien knowingly filed a
frivolous application for asylum, the alien is permanently ineligible
for asylum and any other benefits or relief under the Act, with the
exception of relief from removal through withholding and deferral of
removal. INA sec. 208(d)(6), 8 U.S.C. 1158(d)(6); 8 CFR 208.2020,
1208.20.
Asylum applications are characterized by which agency has
jurisdiction over the alien’s case. If an alien is physically present
in the United States, not detained, and has not been placed in removal
proceedings, the alien files the asylum application with USCIS. These
applications are known as “affirmative” filings. If DHS places an
alien in removal proceedings, the alien files an application for asylum
with an IJ. These applications are known as “defensive” filings
and include aliens the USCIS asylum officer refers to the IJ for de
novo review of their asylum claim.
—————————————————————————

Where an asylum application is filed by an unaccompanied
alien child, USCIS has initial jurisdiction over that application,
even if the applicant is in removal proceedings. INA sec.
208(b)(3)(C), 8 U.S.C. 1158(b)(3)(C); William Wilberforce
Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA),
Public Law 110-457 (Dec. 23, 2008).
—————————————————————————

Aliens who present themselves at a U.S. port of entry (air, sea, or
land) are generally deemed applicants for admission. If an
immigration officer determines that an alien is inadmissible under
section 212(a)(6)(C) or 212(a)(7) of the Act for being in possession of
false documents, making false statements, or lacking the required
travel documentation, the alien may be placed in expedited removal
proceedings under section 235(b)(1) of the Act, 8 U.S.C. 1225(b)(1).
Such aliens may indicate an intention to apply for asylum, express a
fear of persecution or torture, or a fear of return to their home
country and must be interviewed by an asylum officer to determine
whether the alien has a credible fear of persecution or torture. INA
section 235(b)(1), 8 U.S.C. 1225(b)(1); 8 CFR 235.3(b)(4). If an alien
is determined to have a credible fear, “the alien shall be detained
for further consideration of application for asylum.” INA sec.
235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii). Asylum applications based
initially on a positive credible fear determination are under the
jurisdiction of the immigration courts once a Notice to Appear (NTA) is
filed with the court and are considered “defensively-filed”
applications. Similarly, if an alien has a positive credible fear
determination, but is released from detention by ICE, the alien is
still considered to be under the jurisdiction of the immigration court
once the NTA is filed and must file the application for asylum with the
court.
—————————————————————————

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

D. Employment Authorization for Asylees and Asylum Applicants

Whether an alien is authorized to work in the United States depends
on the alien’s status in the United States and whether employment is
specifically authorized by statute or only authorized pursuant to the
Secretary’s discretion. Employment authorization for aliens granted
asylum and for asylum applicants is authorized under INA sections
208(c)(1)(B) and (d)(2), respectively. Employment authorization for
aliens granted asylum is statutorily mandated and incident to their
status. Aliens granted asylum (asylees) are not required to apply for
an EAD but can do so under 8 CFR 274a.12(a)(5) if they want to have
documentation that reflects that they are employment authorized.
Employment authorization for aliens granted withholding of removal or
deferral of removal are governed by 8 CFR 274a.12(a)(10) and (c)(18)
respectively.
An asylum applicant, however, is not entitled to employment
authorization by statute. INA section 208(d)(2), 8 U.S.C. 1158(d)(2).
The Secretary, through regulations, may authorize employment for aliens
who request asylum while the asylum application is pending
adjudication. Even if the Secretary chooses to grant employment
authorization to an asylum applicant, under the current statute and
regulations, he or she cannot grant such authorization until 180 days
after the filing of the application for asylum. Id. In practice, this
180-day period is commonly called the “180-day Asylum EAD Clock.”
The goal of the Asylum EAD clock is to deter applicants from
delaying their asylum application. Therefore, USCIS does not count, for
purposes of eligibility for an EAD, the days that actions by the
applicant have resulted in delays to the adjudication of his or her
asylum application. However, applicants, practitioners, and USCIS
itself have all cited difficulty with accurate clock calculations.
In light of these issues, USCIS is proposing to eliminate the clock
altogether and, instead, extend the mandatory waiting period to file an
asylum-based EAD application. USCIS is also proposing that the EAD
application will be denied if the asylum case is subject to an
applicant-caused delay at the time the Form I-765(c)(8) application is
adjudicated.
—————————————————————————

EOIR-USCIS joint notice, The 180-day Asylum EAD Clock
Notice, <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> (last updated May
9, 2017).
See Dep’t of Homeland Security, Citizenship & Immigration
Services Ombudsman Report, Employment Authorization For Asylum
Applicants: Recommendations To Improve Coordination And
Communication (Aug. 26, 2011), at p.6.
—————————————————————————

While the INA bars certain aliens from being granted asylum who,
for example, are persecutors, have been convicted of a particularly
serious crime, have committed serious nonpolitical crimes outside
of the United States, who are a danger to the security of the United
States, have engaged in certain terrorism-related related activities or
are members of terrorist organizations, or were firmly resettled in a
third country, such aliens may still apply for asylum, and subsequently
also apply for an EAD once their application has been pending for 150
days. INA sec. 208(b)(2)(A), 8 U.S.C. 1158(b)(2)(A).
—————————————————————————

See, e.g., INA sec. 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F);
INA sec. 212(a)(2)(A)(i)(I), 8 U.S.C. 1182(a)(2)(A)(i)(I); INA sec.
212(a)(2)(B), 8 U.S.C. 1182(a)(2)(B).

—————————————————————————

[[Page 62388]]

Aliens seeking employment authorization generally must apply for an
EAD by filing Form I-765, Application for Employment Authorization,
with USCIS in accordance with the form instructions, along with any
prescribed fee (unless waived). 8 CFR 274a.13. The regulations at 8 CFR
208.7 and 274a.12(c)(8) govern employment authorization for asylum
applicants.

E. Asylum and EAD Adjudications

Under existing regulations, there are several important stages and
timeframes that can affect the adjudication of asylum applications and
(c)(8) EADs: (1) The initial filing of an asylum application; (2) the
one-year filing deadline; (3) the 150-day period asylum applicants must
wait before they are eligible to file an application for employment
authorization; and (4) the additional 30-day period (180-days total)
before USCIS may grant (c)(8) employment authorization.
Under current 8 CFR 208.3, if USCIS fails to return the incomplete
application for asylum within 30 days to the applicant, the application
is automatically deemed complete. Once the asylum application has been
accepted for processing, asylum officers review it to determine if all
the documents required to make a decision have been submitted. This
review also includes a determination of whether the asylum application
was filed within the required one-year period. If the alien failed to
file within the one-year period, asylum officers and/or IJs then
determine whether the alien meets any of the exceptions to the late
filing bar. In the case of affirmative asylum filings, if the alien
does not meet an exception, the asylum officer has the authority to
deny, dismiss, or refer the case to the immigration court. 8 CFR
208.14. Asylum officers refer cases to the immigration court by issuing
a NTA, which places the alien into removal proceedings. If the asylum
officer refers the complete asylum application to the immigration
court, the immigration court conducts a de novo review and determines
if the alien meets the required one-year deadline or qualifies for any
of the late filing exceptions.
Once the asylum application is accepted, the 150-day waiting period
for filing a (c)(8) EAD application begins. The regulations at 8 CFR
208.7(a) further provide that USCIS will have 30 days from the filing
date of the EAD application to grant or deny that application. The 180-
day asylum EAD “clock” therefore includes the 150-day waiting period
for filing the (c)(8) EAD application, which is the time while the
asylum application is pending with USCIS, or an IJ, and the additional
30-day period that USCIS has to grant or deny the EAD application. The
180-day Asylum EAD Clock excludes delays requested or caused by the
applicant and does not run again until the applicant cures the delay or
until the next scheduled event in a case, such as a postponed interview
due to the delay, or a continued hearing.
USCIS is not permitted to issue an EAD until 180-days after the
filing of a complete asylum application (i.e. the date an alien can be
issued an EAD). If a USCIS asylum officer recommends that an asylum
application be approved before the required waiting period ends, the
alien may apply for employment authorization based on the recommended
approval.
As noted, there are a number of actions that can delay or toll the
running of the 180-day Asylum EAD Clock. For example, if an applicant
fails to appear for a required biometrics appointment, the 180-day
clock will stop and not recommence until the alien appears for his or
her biometrics appointment. Similarly, if an alien asks to amend or
supplement his or her asylum application, fails to appear at an asylum
office to receive and acknowledge receipt of the decision, requests an
extension after the asylum interview, or reschedules an asylum
interview, all of these actions will stop the 180-day Asylum EAD Clock,
and the EAD clock will not recommence until the required action is
completed. As a result, some aliens may have to wait longer than
180 calendar days before they can be granted employment authorization.
—————————————————————————

See id. EOIR-USCIS joint notice, The 180-day Asylum EAD
Clock Notice, for additional examples of actions that can affect the
180-day Asylum EAD Clock.
—————————————————————————

Once an asylum applicant receives an EAD based on a pending asylum
application, his or her employment authorization will terminate either
on the date the EAD expires or 60 days after the denial of asylum,
whichever is longer (affirmatively-filed cases). If the asylum
application is denied by an IJ, the BIA, or a denial of asylum is
upheld by a Federal court, the employment authorization terminates upon
the expiration of the EAD, unless the applicant seeks renewal of
employment authorization during the pendency of any administrative or
judicial review.

V. Discussion of Proposed Rule

A. 365-Day Waiting Period To Apply for Asylum-Application-Based EADs

DHS is proposing to extend the time period an asylum applicant must
wait before he or she is eligible to be granted employment
authorization based on a pending asylum application from 180 days to
365 calendar days. See proposed 8 CFR 208.7. DHS is proposing this
change to a 365-day waiting period to remove the incentives for aliens
who are not legitimate asylum seekers to exploit the system and file
frivolous, fraudulent, or non-meritorious claims to obtain employment
authorization. Currently, if an alien files an application for asylum,
the alien can obtain an employment authorization document after just
180 days, not including any days not counted due to an applicant-caused
delay. Backlogs at USCIS and the years-long wait for hearings in the
immigration courts allow aliens to remain in the United States for many
years, be authorized for employment, and ultimately gain equities for
an immigration benefit, even if their asylum applications will be
denied on their merits. DHS believes that the longer waiting period
for filing a (c)(8) EAD application will be a strong deterrent to
frivolous, fraudulent, and non-meritorious asylum filings. Further, in
light of DHS’s assessment that many asylum applications appear to
be coming from aliens escaping general criminal violence and poor
economic situations in their home countries, rather than the five
protected grounds for asylum or torture, it is logical that more
stringent requirements for eligibility for employment authorization,
such as a substantially longer waiting period for employment
authorization, would disincentivize these would-be asylum seekers from
coming to the United States in search of economic opportunity. DHS also
believes that this deterrent, coupled with last-in, first out (LIFO)
asylum-adjudication scheduling discussed below, will lead to
meritorious

[[Page 62389]]

applications being granted sooner–resulting in immediate work
authorization conferred on asylees by INA section 208(c)(1)(B)–and
non-meritorious applications being denied sooner–resulting in the
prompt removal of aliens who fail to establish eligibility to remain in
the United States. DHS acknowledges that the reforms proposed will also
apply to individuals with meritorious asylum claims, and that these
applicants may also experience economic hardship as a result of
heightened requirements for an EAD. However, DHS’s ultimate goal is to
maintain integrity in the asylum process, sustaining an under-regulated
administrative regime is no longer feasible. It is not unreasonable to
impose additional time and security requirements on asylum seekers.
Asylum seekers already are subject to temporal and security
restrictions, and for the United States to scale up those restrictions
based on operational needs is entirely reasonable.
—————————————————————————

See, e.g., Doris Meissner, Faye Hipsman, and T. Alexander
Aleinikoff, The U.S. Asylum System in Crisis; Charting a Way
Forward, Migration Policy Institute (Sept. 2018) at pp. 4 and 9-12,
for additional discussion on the impact of backlogs and delays in
immigration proceedings.
See “Statement from the Department of Homeland Security
following the Acting Secretary’s appearance at Georgetown
University” (Oct. 2019), <a href=”https://www.dhs.gov/news/2019/10/07/statement-department-homeland-security-following-acting-secretary-s-appearance”>https://www.dhs.gov/news/2019/10/07/statement-department-homeland-security-following-acting-secretary-s-appearance</a>. DHS has made this assessment based on internal reporting
from regional asylum offices, internal country information
assessments, and corroborating journalist sources cited prior in
this Notice of Proposed Rule Making.
—————————————————————————

DHS is proposing this change to complement its LIFO scheduling
priority, re-implemented on January 29, 2018. This priority
approach, first established by the asylum reforms of 1995 and used for
20 years until 2014, seeks to deter those who might try to use the
existing backlog as a means to obtain employment authorization.
Returning to a LIFO interview schedule will allow USCIS to identify
frivolous, fraudulent, or otherwise non-meritorious asylum claims
earlier and place those aliens into removal proceedings. Under the
previous Administration, the Department discontinued LIFO processing,
the timing of which corresponded with a significant increase in asylum
applications.
—————————————————————————

USCIS News Release, USCIS To Take Action to Address Asylum
Backlog (Jan. 31, 2018).
—————————————————————————

In the last decade, USCIS has seen its backlog of asylum
applications skyrocket, with the number of new affirmative asylum
filings increasing by a factor of 2.5 between FY 2014 and FY 2017.
As of March 31, 2019, USCIS currently faces an affirmative asylum
backlog of over 327,984 cases. The high volume of cases stems in part
from the recent surges in illegal immigration and organized caravans of
thousands of aliens, primarily from the Northern Triangle countries (El
Salvador, Honduras, and Guatemala), creating a humanitarian and
national security crisis at the southern border. USCIS also has had to
divert resources and asylum officers from processing affirmative asylum
backlog cases to address the continuing high volume of credible fear
and reasonable fear cases that require immediate interviews.
—————————————————————————

See supra note 39.
—————————————————————————

DHS proposes to eliminate the 180-day Asylum EAD Clock and instead
deny EAD applications that have unresolved, applicant-caused delays
existing on the date of EAD adjudication. The proposed elimination of
the 180-day EAD clock will resolve some of the difficulties
adjudicators face in processing asylum EAD applications. Calculating
the current Asylum EAD clock is one of the most complex and time-
consuming aspects of EAD adjudications. It requires multipart
calculations and the tracking of the start and stop dates for each
individual applicant’s case. It also requires coordination with DOJ-
EOIR for defensively-filed cases that are not under USCIS’
jurisdiction. In light of these issues, USCIS is proposing to
eliminate the clock altogether and instead extend the mandatory waiting
period to file for an EAD and notify applicants that their EAD
application will be denied if the asylum case is subject to an
applicant-caused delay at the time the Form I-765 (c)(8) application is
adjudicated. USCIS believes eliminating the 180-day Asylum EAD clock
will significantly streamline the employment authorization process of
the (c)(8) EAD because EAD adjudicators will no longer have to
calculate the number of days that must be excluded to account for
applicant-caused delays or coordinate with DOJ-EOIR to do so, and will
instead simply rely on 365 calendar days from the asylum application
receipt date to determine when an alien can request employment
authorization. DHS has promulgated a separate rulemaking proposing the
elimination of the requirement to adjudicate the EAD application within
30 days. See Removal of 30-Day Processing Provision for Asylum
Applicant-Related Form I-765 Employment Authorization Applications”
DHS Docket No. USCIS-2018-0001, 84 FR 47148 (Sept. 9, 2019).
—————————————————————————

USCIS acknowledges that many processes have been automated
by the Person Centric Query System (PCQS) Asylum EAD Clock
Calculator. However, the Asylum EAD Clock Calculator is not fully
automated and there are still calculations that are not captured in
the Clock Calculator. Additionally, not all scenarios have business
rules that have been created. This requires officers to do manual
calculations in many scenarios. The elimination of the 180-day
Asylum EAD Clock will create overall efficiencies for USCIS given
these limitations with the Clock Calculator.
See, e.g., Citizenship & Immigration Services Ombudsman,
Employment Authorization For Asylum Applicants, at p.6.
—————————————————————————

DHS recognizes that a number of aliens who are legitimate asylum
seekers may experience potential economic hardship because of the
extended waiting period. However, the asylum system in the United
States is completely overwhelmed. DHS is urgently seeking
solutions, including mustering an all-volunteer force to assist with
processing incoming migrants at the southwest border of the United
States. But mitigating this unprecedented pressure on the U.S.
immigration system will require more than just adding and reallocating
DHS resources. DHS must take steps to address the pull factors bringing
economic migrants to the United States. The urgency to maintain the
efficacy and the very integrity of the U.S. asylum and immigration
system outweighs any hardship that may be imposed by the additional
six-month waiting period. The integrity and preservation of the U.S.
asylum system takes precedence over potential economic hardship faced
by alien arrivals who enjoy no legal status in the United States,
whether or not those aliens may later be found to have meritorious
claims. DHS seeks public comment on this proposed amendment.
—————————————————————————

See, e.g., Joel Rose and John Burnett, Migrant Families
Arrive in Busloads as Border Crossings Hit 10-Year High, Nat’l Pub.
Radio (March 5, 2019) for observations about the recent surges in
illegal immigration on the southern border.
See, e.g., Geneva Sands, DHS Secretary Nielsen Asks for
Volunteers to Help at the Border, CNN Politics (Mar. 29, 2019);
Miriam Jordan, More Migrants are Crossing the Border This Year.
What’s Changed?, N.Y. Times (Mar. 05, 2019).
See, e.g., de C[oacute]rdoba, Jose. The Guatemalan City
Fueling the Migrant Exodus to America, The Wall Street Journal,
(July 21,2019), <a href=”http://www.wsj.com/articles/the-guatemalan-city-fueling-the-migrant-exodus-to-america-11563738141″>www.wsj.com/articles/the-guatemalan-city-fueling-the-migrant-exodus-to-america-11563738141</a>.
—————————————————————————

B. One-Year Filing Deadline

As part of the reforms to the asylum process, DHS also is
emphasizing the importance of the statutory one-year filing deadline
for asylum applications. Both DHS and DOJ-EOIR adjudicate asylum
applications filed by aliens who reside in the United States for years
before applying for asylum. Many aliens filing for asylum now are
aliens who were inspected and admitted or paroled but failed to depart
at the end of their authorized period of stay (visa overstays), or who
entered without inspection and admission or parole and remained, not
because of a fear of persecution in their home country, but for
economic reasons. In addition, the

[[Page 62390]]

Asylum Division reports that a contributing factor to the asylum
backlog is an increase in the number of applicants who file skeletal or
fraudulent asylum applications affirmatively to trigger removal
proceedings before the immigration court where they can apply for
cancellation of removal, a statutory defense against removal and
pathway to lawful permanent resident status available to those who have
at least ten years of physical presence in the United States and meet
additional eligibility criteria. DHS seeks to address this practice
and reduce the asylum backlog by proposing to make aliens ineligible
for (c)(8) employment authorization if they fail to file their asylum
application within one year of their last arrival in the United States
as required by statute. Based on statute and relevant case law, DHS
also proposes limited exceptions to the one-year-filing deadline as it
relates to eligibility for a (c)(8) EAD, namely those who meet an
exception under INA section 208(a)(2)(D) or if the applicant was an
unaccompanied alien child on the date the asylum application was first
filed. DHS believes that the statutory one-year filing period is a
sufficient period of time for bona fide asylum applicants to make their
claim with USCIS or an IJ. DHS seeks public comments on these proposed
amendments.
—————————————————————————

Even Congress found that the asylum system was being
overwhelmed with asylum claims, including frivolous and fraudulent
claims filed merely to obtain employment authorization. See, e.g.,
Public Law 103-322, 108 Stat. 1796, at sec. 130010(3) (findings of
the Senate on the need for reforms to the asylum process, including
finding that the asylum system was being abused “by fraudulent
applicants whose primary interest is obtaining work authority in the
United States while their claim languishes in the backlogged asylum
processing system.”). See also H.R. Rep. No. 99-682(I) at pp. 5649-
5654, where Congress discussed the impact of economic migrants on
the U.S. economy during consideration of IRCA in 1986:
Now, as in the past, the Committee remains convinced that
legislation containing employer sanctions is the most humane,
credible, and effective way to respond to the large scale influx of
undocumented aliens. While there is no doubt many who enter
illegally do so for the best of motives–to seek a better life for
themselves and their families–immigration must proceed in a legal,
orderly and regulated fashion. As a sovereign nation, we must secure
our borders.
* * *
Since most undocumented aliens enter this country to find jobs,
the Committee believes it is essential to require employers to share
the responsibility to address this serious problem. The need for
control is underscored by international demographics. Undocumented
aliens tend to come from countries with high population growth and
few employment opportunities. The United States is not in a position
to redress this imbalance by absorbing these workers into our
economy and our population. U.S. unemployment currently stands at 7%
and is much higher among the minority groups with whom undocumented
workers compete for jobs directly.
See CIS Ombudsman, Annual Report, at p. 44.
—————————————————————————

C. Criminal Bars to Eligibility

DHS is proposing to expand the bars to the (c)(8) EAD to any alien
who has: (1) Been convicted of any aggravated felony as defined in
section 101(a)(43) of the INA, 8 U.S.C. 1101(a)(43), (2) been convicted
of any felony in the United States or any serious non-political crime
outside the United States, or (3) been convicted in the United States
of certain public safety offenses involving domestic violence or
assault; child abuse or neglect; controlled substances; or driving or
operating a motor vehicle under the influence of alcohol or drugs,
regardless of how the offense is classified by the state or local
jurisdiction. DHS also proposes to consider, on a case-by-case basis,
whether aliens who have been convicted of any non-political foreign
criminal offense, or have unresolved arrests or pending charges for any
non-political foreign criminal offenses, warrant a favorable exercise
of discretion. DHS also proposes to consider, on a case-by-case
basis, whether an alien who has unresolved domestic charges or arrests
that involve domestic violence, child abuse, possession or distribution
of controlled substances, or driving under the influence of drugs or
alcohol, warrant a favorable exercise of discretion for a grant of
employment authorization.
—————————————————————————

See, e.g., INA sec. 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F);
INA sec. 212(a)(2)(A)(i)(I), 8 U.S.C. 1182(a)(2)(A)(i)(I); INA sec.
212(a)(2)(B), 8 U.S.C. 1182(a)(2)(B).
—————————————————————————

To determine if an asylum applicant seeking employment
authorization has a disqualifying criminal history, DHS proposes to
require such applicants to appear at an ASC to provide their biometrics
for their initial and renewal applications. The biometrics will allow
DHS to conduct criminal history background checks to confirm the
absence of a disqualifying criminal offense, to vet the applicant’s
biometrics against government databases (e.g., FBI databases) to
determine if he or she matched any criminal activity on file, to verify
the applicant’s identity, and to facilitate card production. In order
to implement the criminal ineligibility provision, DHS will require
applicants with a pending initial or renewal (c)(8) EAD on the
effective date of this rule to appear at an ASC for biometrics
collection but DHS will not collect the biometrics services fee from
these aliens. DHS will contact applicants with pending applications and
provide notice of the place, date and time of the biometrics
appointment.
DHS seeks comment on additional public safety related crimes that
should bar (c)(8) EAD eligibility. See proposed 8 CFR 208.7 and
274a.12(c)(8). Providing discretionary employment authorization to
criminal aliens and aliens who have been convicted for serious crimes
that offend public safety, and who have not been determined eligible
for asylum.

D. Procedural Reforms

DHS is proposing to clarify that USCIS has jurisdiction over all
applications for employment authorization based on a pending or
approved asylum application, regardless of whether USCIS or DOJ-EOIR
has jurisdiction over the asylum case. DHS is also proposing several
procedural changes to streamline the asylum adjudication process.
Currently, most applications, petitions, and requests for immigration
benefits have specific minimum requirements that must be met before the
forms can be accepted for filing. DHS proposes to amend the regulations
at 8 CFR 208.3 to remove the language providing that a Form I-589,
Application for Asylum and for Withholding of Removal, will be deemed a
complete, properly filed application if USCIS fails to return the
incomplete Form I-589 to the alien within a 30-day period. See proposed
8 CFR 208.333. This procedural change will require asylum applicants to
file the asylum application in accordance with the requirements
outlined in the regulations and form instructions and is consistent
with the general principle that applicants and petitioners bear the
burden of filing complete applications and petitions. Applications not
properly filed are rejected and returned to the applicant with the
reasons for the rejection, consistent with other forms.
DHS also proposes to remove the language referring to “recommended
approvals” of asylum applications and the benefits of such applicants
who receive those notices. See proposed 8 CFR 208.3 and 274a.12(c)(8).
Recipients of recommended approvals have not fully completed the asylum
adjudication process. Previously, USCIS issued such notices even when
all required background and security check results had not been
received, and recipients of recommended approvals were eligible for
employment authorization. However, because Congress has mandated that
DHS not approve asylum applications until DHS has received and reviewed
all the results of the required background and security checks, DHS has
determined that continuing to issue recommended approval notices is
contrary to this mandate. In addition,

[[Page 62391]]

USCIS believes it is an inefficient use of resources for USCIS to
manage a separate processing regime, which requires USCIS to review the
asylum application twice: First to determine if it is initially
approvable as a “recommended approval,” and then again (after a
recommended approval notice has been issued to the applicant) to ensure
that the applicant remains eligible for asylum based on the results of
the background and security checks. This change would enhance
efficiency by removing duplicative case processing tasks and enhance
the integrity of the overall asylum process because all information
will be considered before issuance of the asylum decision
—————————————————————————

See INA sec. 208(d)(5)(A)(i), 8 U.S.C. 1158(d)(5)(A)(i).
(5) Consideration of asylum applications
(A) Procedures.–The procedure established under paragraph (1)
shall provide that–
(i) asylum cannot be granted until the identity of the applicant
has been checked against all appropriate records or databases
maintained by the Attorney General and by the Secretary of State,
including the Automated Visa Lookout System, to determine any
grounds on which the alien may be inadmissible to or deportable from
the United States, or ineligible to apply for or be granted asylum;
(emphasis added).
—————————————————————————

DHS is also proposing that any documentary evidence submitted fewer
than 14 calendar days before the asylum interview (with allowance for a
brief extension to submit additional evidence as a matter of
discretion) may result in an applicant-caused delay if it delays the
adjudication of the asylum application. The purpose of this provision
is to improve administrative efficiency and aid in the meaningful
examination and exploration of evidence in preparation for and during
the interview.

E. Termination of Employment Authorization

DHS proposes revising the rule governing when employment
authorization terminates to provide that when USCIS or DOJ-EOIR denies
an asylum application, the alien’s employment authorization associated
with the asylum application will be terminated automatically, effective
on the date of denial of the asylum application.
1. Denial of Asylum Application by USCIS Asylum Officer
Currently, the regulations at 8 CFR 208.7(b)(1) provide that an
asylum applicant’s employment authorization terminates within 60 days
after a USCIS asylum officer denies the application or on the date of
the expiration of the EAD, whichever is longer. DHS does not believe it
is the will of Congress that aliens with denied asylum applications
should continue to hold employment authorization once the asylum claim
is denied. DHS therefore proposes that when a USCIS asylum officer
denies an alien’s request for asylum, any employment authorization
associated with a pending asylum application will be automatically
terminated effective on the date the asylum application is denied.
Further, consistent with the current regulation, DHS proposes to
exclude from eligibility aliens whose asylum applications have been
denied by an asylum officer during the 365-day waiting period or before
the adjudication of the initial employment authorization request.
When a USCIS asylum officer refers an affirmative application to
DOJ-EOIR, the asylum application remains pending, and the associated
employment authorization remains valid while the IJ adjudicates the
application. Aliens granted asylum by USCIS or an IJ no longer require,
nor are they eligible for, a (c)(8) EAD, but they can apply for an EAD
under 8 CFR 274a.12(a)(5) if they want documentation that reflects they
are employment authorized.
2. Termination After Denial by IJ
Currently, the regulations at 8 CFR 208.7(b)(2) provide that when
an IJ denies an asylum application, the employment authorization
terminates on the date the EAD expires, unless the asylum applicant
seeks administrative or judicial review. DHS proposes instead that if
the IJ denies the alien’s asylum application, employment authorization
will terminate 30 days after denial to allow time for appeal to the
BIA. If a timely appeal is filed, employment authorization will be
available to the alien during the BIA appeal process, but prohibited
during the Federal court appeal process unless the case is remanded to
DOJ-EOIR for a new decision. USCIS believes that restricting access to
(c)(8) employment authorization during the judicial review process is
necessary to ensure that aliens who have failed to establish
eligibility for asylum during two or three levels of administrative
review do not abuse the appeals processes in order to remain employment
authorized. For the same reason, DHS proposes to exclude from
eligibility aliens whose asylum applications have been denied by an IJ
during the 365-day waiting period.
3. Automatic Extensions of Employment Authorization and Terminations
To conform the automatic extension and termination provisions
proposed under 8 CFR 208.7(b), DHS is also proposing amendments to the
current regulations at 8 CFR 274a.13(d), which govern automatic
extensions of employment authorization and termination of such
extensions. If an asylum applicant’s employment authorization will
expire before the asylum officer, IJ, or the BIA renders a decision on
the asylum application, under current regulations, the alien may file
an application to renew the employment authorization. If the renewal
EAD application is filed timely, the alien’s employment authorization
is extended automatically for up to 180 days or the date of the EAD
decision, whichever comes first. As previously discussed, when a USCIS
asylum officer, IJ, or the BIA denies the asylum application, any
employment authorization would terminate on the date of the denial,
except for the thirty-day appeal window for an alien to file an appeal
before the BIA following an asylum application’s denial by an IJ. This
rule at proposed 8 CFR 208.7(b)(2) makes clear that employment
authorization automatically terminates regardless of whether it is in a
period of automatic extension. Therefore, the rule proposes conforming
amendments at 8 CFR 274a.13(d)(3), specifying that automatic extensions
would be automatically terminated upon a denial of the asylum
application, or on the date the automatic extension expires (which is
up to 180 days), whichever is earlier. See proposed 8 CFR
274a.13(d)(3).
DHS also proposes a technical change that would add a new paragraph
at 8 CFR 274a.14(a)(1) to generally reference any automatic termination
provision elsewhere in DHS regulations, including the automatic EAD
termination provision being proposed by this rule. As 8 CFR
274a.14(a)(1) is a general termination provision, DHS feels that
incorporation of a general reference to other termination provisions
would help avoid possible confusion regarding the applicability of such
other provisions in relation to 8 CFR 274a.14(a)(1).
—————————————————————————

See proposed 8 CFR 208.7(b)(2); see also 8 CFR
214.2(f)(9)(ii)(F)(2) (automatic termination of F-1 student-based
employment authorization based on economic necessary where the
student fails to maintain status).
—————————————————————————

F. Aliens Who Have Established a Credible Fear or a Reasonable Fear of
Persecution or Torture and Who Have Been Paroled Into the United States

DHS proposes clarifying the rule governing employment eligibility
for certain aliens who have been paroled into the United States after
establishing a credible fear or reasonable fear of persecution or
torture. See 8 CFR 208.30.

[[Page 62392]]

In 2017, DHS issued a memo, “Implementing the President’s Border
Security and Immigration Enforcement Improvement Policies,” which
stated that CBP or ICE will only consider the release of aliens from
detention based on the parole authority under INA section 212(d)(5) on
a case-by-case basis. One such case is when an arriving alien
subject to expedited removal establishes a credible fear of persecution
or torture, or eligibility for withholding of removal, adequately
establishes his or her identity, does not pose a flight risk or danger
to the community, and otherwise warrants parole as a matter of
discretion. Currently, when DHS exercises its discretion to parole such
aliens, officers are instructed to endorse the Form I-94 parole
authorization with an express condition that employment authorization
not be provided under 8 CFR 274a.12(c)(11) on the basis of the parole.
This rule would conform the regulations to that important policy. DHS
continues to believe that it would be an inconsistent policy to permit
these asylum seekers released on parole to seek employment
authorization without being subject to the same statutory requirements
and waiting period as non-paroled asylum seekers. Therefore, this rule
proposes to clarify, consistent with existing DHS policy, that
employment authorization for this category of parolees is not
immediately available under the (c)(11) category. Such aliens may still
be eligible to apply for a (c)(8) employment authorization to become
employment authorized subject to the eligibility changes proposed in
this rule. DHS seeks public comment on this proposal and whether the
(c)(11) category (parole-based EADs) should be further limited, such as
to provide employment authorization only to those DHS determines are
needed for foreign policy, law enforcement, or national security
reasons, especially since parole is meant only as a temporary measure
to allow an alien’s physical presence in the United States until the
need for parole is accomplished or the alien can be removed.
—————————————————————————

See Secretary of Homeland Security John Kelly,
“Implementing the President’s Border Security and Immigration
Enforcement Improvements Policies,” Section K (Feb. 20, 2017),
<a href=”https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Implementing-the-Presidents-Border-Security-Immigration-Enforcement-Improvement-Policies.pdf”>https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Implementing-the-Presidents-Border-Security-Immigration-Enforcement-Improvement-Policies.pdf</a>.
—————————————————————————

G. Illegal Entry

DHS proposes to exclude aliens from receiving a (c)(8) EAD if they
enter or attempt to enter the United States illegally without good
cause. Good cause is defined as a reasonable justification for entering
the United States illegally as determined by the adjudicator on a case-
by-case basis. Since what may be a reasonable justification for one
applicant may not be reasonable when looking at the circumstances of
another applicant, DHS believes a case-by-case determination of good
cause in a (c)(8) adjudication will incentivize aliens to comply with
the law to the extent possible and avoid injury and death associated
with illegal entries, and reduce government expenditures related to
detecting, apprehending, processing, housing, and transporting
escalating numbers of illegal entrants. To the extent that this change
could be considered a “penalty” within the meaning of Article 31(1)
of the 1951 Convention relating to the Status of Refugees, which is
binding on the United States by incorporation in the 1967 Protocol
relating to the Status of Refugees, DHS believes that it is consistent
with U.S. obligations under the 1967 Protocol because it exempts aliens
who establish good cause for entering or attempting to enter the United
States at a place and time other than lawfully through a U.S. port of
entry.
The amendments to this section make any alien who entered or
attempted to enter the United States at a place and time other than
lawfully through a U.S. port of entry ineligible to receive a (c)(8)
EAD, with the limited exception of when an alien demonstrates that he
or she: (1) Presented himself or herself without delay to the Secretary
of Homeland Security (or his or her delegate); and (2) indicated to a
DHS agent or officer an intent apply for asylum or expressed a fear of
persecution or torture; and (3) otherwise had good cause for the
illegal entry or attempted entry. Examples of reasonable justifications
for the illegal entry or attempted entry include, but are not limited
to, requiring immediate medical attention or fleeing imminent serious
harm, but would not include the evasion of U.S. immigration officers,
or entering solely to circumvent the orderly processing of asylum
seekers at a U.S. port of entry, or convenience. Asylum is a
discretionary benefit that should be reserved only for those who are
truly in need of the protection of the United States. It follows that
work authorization associated with a pending asylum application should
be similarly reserved.

H. Effective Date of the Final Rule

The rules in effect on the date of filing Form I-765 will govern
all initial and renewal applications for (c)(8) and (c)(11) employment
authorization, with limited exceptions. DHS will apply two proposed
provisions–ineligibility based on certain criminal offenses and
failure to file the asylum application within one year–to initial and
renewal applications for (c)(8) EAD’s pending on the effective date of
the final rule. In order to implement the criminal ineligibility
provision, DHS will require applicants with a pending initial or
renewal (c)(8) EAD application on the effective date of this rule to
appear at an ASC for biometrics collection but DHS will not collect the
biometrics services fee from these aliens. DHS will contact applicants
with pending applications and provide notice of the place, date and
time of the biometrics appointment. To ensure consistency with a
separate proposed rule entitled “Removal of 30-Day Processing
Provision for Asylum Applicant-Related Form I-765 Employment
Authorization Applications,” DHS Docket No. USCIS-2018-0001, 84 FR
47148 (Sept. 9, 2019), DHS proposes that this NPRM will not apply to
initial applications filed before the effective date of this rule by
members of the Rosario class. Under this proposal, DHS would allow
aliens with pending asylum applications that have not yet been
adjudicated and who already have employment authorization before the
final rule’s effective date to remain work authorized until the
expiration date on their EAD, unless the card is terminated or revoked
on grounds in existing regulations. This proposed rule will not have
any impact on applications to replace lost, stolen, or damaged (c)(8)
EADs. All (c)(11) EAD applications based on parole/credible fear that
are received by USCIS on or after the date the final rule is effective
will be denied, as that ground for employment authorization is
inconsistent with INA 208(d)(2).

VI. 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

[[Page 62393]]

reducing costs, of harmonizing rules, and of promoting flexibility.
This rule has been designated as a “significant regulatory action”
that is economically significant, under section 3(f)(1) of Executive
Order 12866. Accordingly, the Office of Management and Budget (OMB) has
reviewed this rule.
1. Summary
USCIS has considered alternatives and has undertaken a range of
initiatives to address the asylum backlog and mitigate its consequences
for asylum seekers, agency operations, and the integrity of the asylum
system. These efforts include: (1) Revised scheduling priorities
including changing from First in, First Out (“FIFO”) order processing
to LIFO order; (2) staffing increases and retention initiatives; (3)
acquiring new asylum division facilities; (4) assigning refugee
officers to the Asylum Division; and (5) conducting remote
screenings.
—————————————————————————

See Dep’t of Homeland Security, 2018 Citizenship &
Immigration Services Ombudsman Annual Report at 44.
—————————————————————————

<bullet> Revised Interview Scheduling Priorities: A significant
scheduling change occurred in January 2018 with FIFO scheduling
returning to LIFO scheduling order. Previously implemented in 1995,
LIFO remained in effect until 2014. Under FIFO scheduling, USCIS
generally processed affirmative asylum applications in the order they
were filed. The now-operative LIFO scheduling methodology prioritizes
newly-filed applications. Some offices already report a 25 percent drop
in affirmative asylum filings since implementation of the LIFO
scheduling system in January 2018.
—————————————————————————

Id. at 45.
—————————————————————————

<bullet> Staffing Increases and Retention Initiatives: Since 2015,
USCIS has increased the number of asylum officer positions by more than
50 percent, from 448 officers authorized for FY 2015 to 686 officers
authorized for FY 2018. Along with these staffing enhancements, USCIS
increased the frequency with which it offered its Combined Training and
Asylum Division Officer Training Course. Moreover, to address asylum
officer turnover, USCIS has made efforts to increase telework options
and expand opportunities for advancement.
—————————————————————————

Id. at 46.
—————————————————————————

<bullet> New Asylum Division Facilities: The Asylum Division also
expanded its field operations, opening sub-offices in Boston, New
Orleans, and Arlington, VA. Its most significant expansion, however, is
just getting underway. Currently, the Asylum Division is establishing
an asylum vetting center–distinct from the planned DHS-wide National
Vetting Center–in Atlanta, Georgia. This center will allow for the
initiation of certain security checks from a central location, rather
than at individual asylum offices, in an effort to alleviate the
administrative burden on asylum officers and to promote vetting and
processing efficiency. USCIS has already begun hiring for the center,
which will ultimately staff approximately 300 personnel, composed of
both asylum and Fraud Detection and National Security Directorate
(FDNS) positions. USCIS expects completion of the center’s construction
in 2020.
—————————————————————————

Id.
—————————————————————————

<bullet> Remote Screenings: Telephonic and Videoconference: In
2016, the Asylum Division established a sub-office of the Arlington
Asylum Office dedicated to adjudicating credible and reasonable fear
claims. This sub-office performs remote (primarily telephonic)
screenings of applicants who are located in detention facilities
throughout the country. The Asylum Division states that its practice of
performing remote telephonic screenings of credible and reasonable fear
claims have enhanced processing efficiency since implementation. These
screenings allow asylum offices greater agility and speed in reaching
asylum seekers whose arrival patterns in the United States are not
always predictable and who may be detained at remote detention
facilities.
—————————————————————————

Id.
—————————————————————————

<bullet> Refugee Officers Assigned to the Asylum Division:
Throughout 2018, USCIS had approximately 100 refugee officers serving
12-week assignments with the Asylum Division at any given time. These
refugee officers are able to interview affirmative asylum cases,
conduct credible fear and reasonable fear screenings, and provide
operational support. USCIS now assigns refugee officers both to asylum
offices and DHS’s family residential centers.
—————————————————————————

Id. at. 46-47.
—————————————————————————

A simple regulatory alternative to extending the waiting period to
365 days and strengthening eligibility requirements is rescinding work
authorization for asylum applicants altogether, which is permissible
under INA 208(d)(2). This too would reduce pull factors and alleviate
the asylum backlog. However, DHS seeks to balance deterrence of those
abusing the asylum process for economic purposes and providing more
timely protection to those who merit such protection, which includes
immediate and automatic employment authorization when the asylum
application is granted. DHS believes the proposed amendments in this
rule strike a greater balance between these two goals. The proposed
amendments build upon a carefully planned and implemented comprehensive
backlog reduction plan and amends the (c)(8) EAD process so that those
with bona fide asylum claims can be prioritized and extended the
protections, including employment authorization, that the United States
offers to aliens seeking refuge from persecution or torture.
a. Baseline
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. The table below explains each of the proposed
provisions of this rule, and the baseline against which the change is
measured.

[[Page 62394]]

Table 4–Baseline and Proposal by Provision
—————————————————————————————————————-
Description CFR Citation Proposal Baseline
—————————————————————————————————————-
Provisions that affect asylum and employment authorization
—————————————————————————————————————-
Eliminate the issuance of 8 CFR 208.7; 8 CFR USCIS would no longer Aliens who have received
“Recommended Approvals” for a 274a.12. issue grants of a notice of recommended
grant of affirmative asylum. recommended approvals as approval are able to
a preliminary decision request employment
for affirmative asylum authorization prior to
adjudications. As such, the end of the waiting
aliens who previously period for those with
could apply early for an pending asylum
EAD based on a applications.
recommended approval now
will be required either
to wait 365 days before
they could apply for an
EAD, or wait until they
are granted asylum (if
the asylum grant occurs
earlier than 365 days).
“Complete” asylum applications.. 8 CFR 208.3………. Removing outdated Application for asylum is
provision that automatically deemed
application for asylum “complete” if USCIS
will automatically be fails to return the
deemed “complete” if incomplete application
USCIS fails to return the to the alien within a 30-
incomplete application to day period.
the alien within a 30-day
period.
Eligibility for Employment 8 CFR 208.4; 8 CFR Examples of applicant- No 14-day regulatory
Authorization–Applicant-caused 208.9. caused delays include, restriction on how close
delay. but are not limited to to an asylum interview
the list below. applicants can submit
<bullet> A request to additional evidence.
amend a pending
application for asylum or
to supplement such an
application if unresolved
on the date the (c)(8)
EAD application is
adjudicated;.
<bullet> An
applicant’s failure
to appear to receive
and acknowledge
receipt of the
decision following
an interview and a
request for an
extension to submit
additional evidence,
and;.
<bullet> Submitting
additional
documentary evidence
fewer than 14
calendar days prior
to interview.
—————————————————————————————————————-
Provisions that affect employment authorization only
—————————————————————————————————————-
365-day wait…………………. 8 CFR 208.7………. All aliens seeking a 150-day waiting period
(c)(8) EAD based on a plus applicant-caused
pending asylum delays that toll the 180-
application wait 365 day EAD clock.
calendar days from the
receipt of their asylum
application before they
can file an application
for employment
authorization.
Revise eligibility for employment 8 CFR 208.7………. Exclude from (c)(8) EAD No such restriction.
authorization–One Year Filing eligibility aliens who
Deadline. have failed to file for
asylum for one year
unless and until an
asylum officer or IJ
determines that an
exception to the
statutory requirement to
file for asylum within
one year applies.
Revise eligibility for employment 8 CFR 208.7………. In addition to aggravated Aggravated felons are not
authorization–Criminal felons, also exclude from eligible.
Convictions. (c)(8) eligibility aliens
who have committed
certain lesser criminal
offenses.
Revise eligibility for employment 8 CFR 208.7………. Exclude from (c)(8) No such restriction.
authorization–Illegal Entry. eligibility aliens who
entered or attempted to
enter the United States
at a place and time other
than lawfully through a
U.S. port of entry, with
limited exceptions.

[[Page 62395]]

Termination of EAD after Asylum 8 CFR 208.7………. When a USCIS asylum An asylum applicant’s EAD
Denial or Dismissal by USCIS officer denies or terminates within 60
Asylum Officer. dismisses an alien’s days after a USCIS
request for asylum, the asylum officer denies
(c)(8) EAD would be the application or on
terminated effective on the date of the
the date the asylum expiration of the EAD,
application is denied. If whichever is longer.
a USCIS asylum officer When an asylum officer
refers the case to an IJ refers an affirmative
and places the alien in application to an IJ,
removal proceedings, the application remains
employment authorization pending and the
will be available to the associated EAD remains
alien while the IJ valid while the IJ
adjudicates the asylum adjudicates the
application. application.
Termination of EAD after Asylum 8 CFR 208.7………. If the IJ denies the 8 CFR 208.7(b)(2)
Denial by IJ. asylum application, provides that when an IJ
employment authorization denies an asylum
would continue for 30 application, the EAD
days after the date the terminates on the date
IJ denies the application the EAD expires, unless
to allow for appeal to the asylum applicant
the BIA. If the alien seeks administrative or
files a timely appeal of judicial review.
the denied asylum
application with the BIA,
employment authorization
eligibility would
continue through the BIA
appeal.
Termination of EAD after Asylum 8 CFR 208.7………. Employment authorization Asylum applicants are
Denial Affirmed by the BIA. would not be granted currently allowed to
after the BIA affirms a renew their (c)(8) EADs
denial of the asylum while their cases are
application and while the under review in Federal
case is under review in court.
Federal court, unless the
case is remanded to DOJ-
EOIR for a new decision.
Eligibility for Employment 8 CFR 208.10……… An applicant’s failure to No such restriction.
Authorization–Failure to appear. appear for an asylum
interview or biometric
services appointment may
lead to the dismissal or
referral of his or her
asylum application and
may be deemed an
applicant-caused delay
affecting employment
authorization eligibility.
Limit EAD validity periods…….. 8 CFR 208.7………. USCIS will, in its No such restriction.
discretion, determine
validity periods for
initial and renewal EADs
but such periods will not
exceed two years. USCIS
may set shorter validity
periods.
Incorporate biometrics 8 CFR 208.7………. Asylum applicants applying No such requirement.
requirements into the employment for (c)(8) employment However, there is a
authorization process for asylum authorization must submit requirement to submit
seekers. biometrics at a scheduled biometrics with an
biometrics services asylum application.
appointment. This
requirement would also
apply to applicants with
a pending initial or
renewal (c)(8) EAD
application on the
effective date of this;
though DHS will not
collect the biometric
services fee from these
aliens.
Eligibility for Employment 8 CFR 274a.12…….. Aliens who have been Consistent with current
Authorization–aliens who have paroled into the United DHS policy guidance.
been paroled after being found to States after being found
have a credible fear of to have credible fear or
persecution or torture. reasonable fear of
persecution or torture
may not apply for
employment authorization
under 8 CFR
274a.12(c)(11). They may,
however, continue to
apply for an EAD under 8
CFR 274a.12(c)(8) if
their asylum application
has been; pending for
more than 365 days and
they meet the remaining
eligibility requirements.
Application for EAD…………… 8 CFR 274a.13…….. Clarifying that EAD N/A.
applications must be
filed in accordance with
the general filing
requirements in 8 CFR
103.2(a), 208.3, and
208.4.
Application for EAD…………… 8 CFR 274a.13(a)(1).. Provides USCIS discretion Current regulations do
to grant (c)(8) EAD not give the agency
applications consistent discretion to issue
with INA 208(d)(2). (c)(8) EADs. 8 CFR
274a.13(a)(1) currently
states: The approval of
applications filed under
8 CFR 274a.12(c), except
for 8 CFR 274a.12(c)(8),
are within the
discretion of USCIS.

[[Page 62396]]

Application for EAD–automatic 8 CFR 274a.13(d)(3); For asylum applications For asylum applications
extensions and automatic 8 CFR 208.7(b)(2). denied, any EAD that was denied, any EAD that was
terminations. automatically extended automatically extended
pursuant to 8 CFR pursuant to 8 CFR
274a.13(d)(1) based on a 274a.13(d)(1) will
timely filed renewal terminate at the
application will expiration of the EAD or
automatically terminate 60 days after the denial
on the date the asylum of asylum, whichever is
officer, the IJ, or BIA longer.
denies the asylum
application, or on the
date the automatic
extension expires (which
is up to 180 days),
whichever is earlier.
Cross-reference to any automatic 8 CFR 274a.14…….. Cross-reference to any N/A.
termination provision. automatic termination
provision elsewhere in
DHS regulations,
including the automatic
termination provision
being proposed by this
rule.
Specify the effective date…….. ………………… EAD applications, N/A.
including renewals, filed
on or after the effective
date will be adjudicated
under the rule, except
for the criminal and one-
year-filing bar
provisions, and except
for initial applications
filed by Rosario class
members.
—————————————————————————————————————-

b. Costs and Benefits
This proposed rule amends the (c)(8) EAD system so that those with
bona fide asylum claims can be prioritized and extended the
protections, including employment authorization, that United States
offers to aliens seeking refugee from persecution by reducing the
asylum backlog. The provisions seek to reduce the incentives for aliens
to file frivolous, fraudulent, or otherwise non-meritorious asylum
applications primarily to obtain employment authorization or other,
non-asylum-based forms of relief from removal, and remain for years in
the United States for economic purposes.
The quantified maximum population this rule would apply to is about
305,000 aliens in the first year the rule could take effect and about
290,000 annually thereafter. DHS assessed the potential impacts from
this rule overall, as well as the individual provisions, and provides
quantitative estimates of such impacts where possible and relevant. For
the provisions involving biometrics and the removal of recommended
approvals, the quantified analysis covers the entire populations. For
the 365-day EAD filing time proposal, the quantified analysis also
covers the entire population; however, DHS relies on historical data to
estimate the costs for affirmative cases and certain assumptions to
provide a maximum potential estimate for the remaining affected
population. For the provisions that would potentially end some EADs
early, DHS could estimate only the portion of the costs–those
attributable to affirmative cases–because DHS has no information
available to estimate the number of defensive cases affected.
DHS provides a qualitative analysis of the provisions proposing to
remove employment eligibility for asylum applicants under the (c)(11)
category; terminate EADs earlier for asylum cases denied/dismissed by
an IJ, and; bar employment authorization for asylum applicants with
certain criminal history, who did not enter at a U.S. port of entry, or
who, with little exception, did not file for asylum within one year of
their last arrival to the United States. As described in more detail in
the unquantified impacts section, DHS does not have the data necessary
to quantify the impacts of these provisions.
To take into consideration uncertainty and variation in the wages
that EAD holders earn, all of the monetized costs rely on a lower and
upper bound, benchmarked to a prevailing minimum wage and a national
average wage, which generates a range. Specific costs related to the
provisions proposed are summarized in Table 5. For the four provisions
in which the impacts, or a portion of the impacts, could be monetized,
the single midpoint figure for the wage-based range is presented.
—————————————————————————

The populations reported in Table 55 reflect the maximum
population that would be covered by the provision. Some of the
populations that would incur monetized impacts are slightly
different due to technical adjustments.

Table 5–Summary of Costs and Transfers of the Proposed Rule
————————————————————————
Annual costs and transfers (mid-
Provision summary point)
————————————————————————
III. Quantified:
365-day EAD filing wait period Population: 39,000.
(for DHS affirmative asylum Cost: $542.7 million (quantified
cases and partial estimates impacts for 39,000 of the 153,458
for DHS referrals to DOJ). total population).
Reduction in employment tax
transfers: $83.2 million
(quantified impacts for 39,000 of
the 153,458).
Cost basis: Annualized equivalence
cost.
Summary: Lost compensation for a
portion of DHS asylum cases that
benefitted from initial EAD
approvals who would have to wait
longer to earn wages under the
proposed rule; nets out cost-
savings for persons who would no
longer file under the rule;
includes partial estimate of DHS
referral cases to DOJ-EOIR and the
apropos estimated tax transfers. It
does not include impacts for
defensively filed cases.
Biometrics requirement…….. Population for initial and renewal
EADs: 289,751.
Population for pending EADs: 14,451.
Cost: $37,769,580.
Reduction in employment tax
transfers: None.

[[Page 62397]]

Cost basis: Maximum costs of the
provision, which would apply to the
first year the rule could take
effect.
Summary: For initial and renewal
EADs, there would be time-related
opportunity costs plus travel costs
of submitting biometrics, as well
as $85 fee for (c)(8) I-765 initial
and renewal populations subject to
the biometrics and fee
requirements. A small filing time
burden to answer additional
questions and read associated form
instructions in the I-765 is
consolidated in this provision’s
costs. There would also be time-
related opportunity costs plus
travel costs of submitting
biometrics for EADs pending on the
effective date of the final rule.
Eliminate recommended Population: 1,930 annual.
approvals. Cost: $13,907,387.
Reduction in employment tax
transfers: $2,127,830.
Cost basis: Annualized equivalence
cost.
Summary: Delayed earnings and tax
transfers that would have been
earned for an average of 52
calendar days earlier with a
recommended approval.
Terminate EADs if asylum Population: 575 (current and
application denied/dismissed future).
(DHS). Cost: $31,792,569.
Reduction in employment tax
transfers: $4,864,263.
Cost basis: Maximum costs of the
provision, which would apply to the
first year the rule could take
effect.
Summary: Forgone earnings and tax
transfers from ending EADs early
for denied/dismissed DHS
affirmative EADs asylum
applications. This change would
affect EADs that are currently
valid and EADs for affirmative
asylum applications in the future
that would not be approved. DHS
acknowledges that as a result of
this proposed change, businesses
that have hired such workers would
incur labor turnover costs earlier
than without this rule.
365-day EAD filing wait period Population: 114,458.
(for the residual population). Cost: $1,189.6 million–$3,600.4
million (quantified impacts for the
remaining 114,458 of the 153,458).
Reduction in employment tax
transfers: $182.0 million–$550.9
million (quantified impacts for the
remaining 114,458 of the 153,458).
Cost basis: Annualized equivalence
cost.
Summary: Lost compensation for the
population of approved annual EADs
for which DHS does not have data to
make a precise cost estimate; The
costs reported are a maximum
because the potential impact is
based on the maximum impact of 151
days; in reality there would be
lower-cost segments to this
population and filing-cost savings
as well.
IV. Unquantified:
Revise (c)(11) category from I- Population: 13,000.
765. Cost: delayed/foregone earnings.
Cost basis: NA.
Summary: DHS does not know how many
of the affected population will
apply for an EAD via the (c)(8) I-
765, but the population would be
zero at a minimum and 13,000 at a
maximum, with a mid-point of 6,500.
The population would possibly incur
delayed earnings and tax transfers
by being subject to the 365-day EAD
clock (it is noted that this
population would also incur costs
under the biometrics provision,
above), or lost earnings if they do
not apply for a (c)(8) EAD. There
is potentially countervailing cost-
savings due to a reduced pool of
filers under the proposed rule.
Criminal activity/illegal DHS is unable to estimate the number
entry bar. of aliens impacted. Impacts could
involve forgone earnings and lost
taxes.
Adjudication of pending (c)(8) DHS cannot determine how many of the
I-765 under the criminal and 14,451 pending EAD filings would be
one-year-filing provisions. impacted by the criminal and one-
year-filing provisions. Impacts
could involve forgone earning and
tax transfers.
One-year filing deadline…… Some portion of the 8,472 annual
filing bar referrals could be
impacted, which could comprise
deferred/delayed or forgone earning
and tax transfers. DHS does not
have data on filing bar cases
referred to DOJ-EOIR.
Terminate EADs if asylum DOJ-EOIR has denied an average of
application denied/dismissed (DOJ- almost 15,000 asylum cases
EOIR). annually; however, DHS does not
have data on the number of such
cases that have an EAD. Costs would
involve forgone earnings and tax
transfers for any such EADs that
would be terminated earlier than
they otherwise would, as well as
forgone future earnings and tax
transfers. DHS acknowledges that as
a result of this proposed change,
businesses that have hired such
workers would incur labor turnover
costs earlier than without this
rule.
Renewal EADS…………………. The proposed rule would impose the
conditions in the rule to renewal
filers. Some may be delayed or
precluded from renewing their EADs,
or incur Form I-765 filing fees and
opportunity costs for re-filing.
————————————————————————

[[Page 62398]]

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, or, eligible to work
lawfully, possibly in the form of additional work hours or the direct
and indirect added costs associated with 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
or who would have continued to employ asylum applicants had they been
in the labor market longer, but were unable to find available
replacement labor. These companies would incur a cost, as they would be
losing the productivity and potential profits the asylum applicant
would have provided. Companies may also incur opportunity costs by
having to choose the next best alternative to the immediate labor the
asylum applicant would have provided. 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, but estimated the maximum monetized impact of this
rule in terms of delayed/lost labor compensation. 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 $4,461.9 million (annualized at 7%) 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 $4,461.9 million is the estimated maximum monetized cost of the
rule that could be a transfer, 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 $682.9 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 the provisions that affect
the amount of time an asylum applicant is employed. USCIS notes that
given that the U.S. unemployment rate is hovering around a 50-year
low–at 3.7% as of August 2019–it could be possible that employers may
face difficulties finding reasonable labor substitutes. DHS does note
that an alternative measure of the unemployment rate from the Bureau of
Labor Statistics (the U-6) provides additional information on the labor
market not found in the official unemployment rate (the U-3). The U-6
rate is a broader measure of labor underutilization and takes into
account workers not included in the official U-3 rate that could
potentially benefit from this rule. For example, the U-6 rate considers
persons who are neither working nor looking for work but indicate they
want and are available for a job and have looked for work sometime in
the past twelve months and also considers part-time workers who
otherwise want and are available for full time employment. The U-6 rate
shows unemployment at 7.2 percent, which is much higher than the
official U-3 rate of 3.7 percent.
—————————————————————————

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 full definition of the U-3 and U-6 unemployment rates
can be found on the Bureau of Labor Statistics (BLS) website under
the “Local Area Unemployment Statistics (LAUS),” at: <a href=”https://www.bls.gov/lau/stalt.htm”>https://www.bls.gov/lau/stalt.htm</a>. The actual figures for the U-3 and U-6
unemployment rates are found in table A-15, “Alternative Measures
of Labor Underutilization,” in the Economic News Release Archives
at: <a href=”https://www.bls.gov/news.release/archives/empsit_09062019.htm”>https://www.bls.gov/news.release/archives/empsit_09062019.htm</a>.
See Table A-8, “Employed Persons by Class of Worker and
Part-Time Status”, Persons at work part time for economic reasons:
<a href=”https://www.bls.gov/news.release/archives/empsit_09062019.htm”>https://www.bls.gov/news.release/archives/empsit_09062019.htm</a>.
See Table A-16, “Persons not in the labor force and
multiple jobholders by sex, not seasonally adjusted”, Persons
marginally attached to the labor force: <a href=”https://www.bls.gov/news.release/archives/empsit_09062019.htm”>https://www.bls.gov/news.release/archives/empsit_09062019.htm</a>.>
—————————————————————————

Included in the broader U-6 unemployment rate is the number of
persons employed part time for economic reasons (sometimes referred to
as involuntary part-time workers), which BLS estimates is 4.4 million
in August 2019. 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. In addition, BLS
reports for August 2019 that 1.6 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. They were not counted as unemployed in
the official U-3 unemployment rate because they had not searched for
work in the 4 weeks preceding the BLS survey, but are counted in the U-
6 rate. The U-6 rate provides additional evidence that U.S. workers
might be available to substitute into the jobs that asylum applicants
currently hold.

[[Page 62399]]

Because the biometrics requirement proposed in this rule is a cost
to applicants and not a transfer, its minimum value of $27.17 million
is the minimum cost of the rule. The range of impacts described by
these two scenarios, plus the consideration of the biometrics costs,
are summarized in Table 6 below (Table 6A and 6B capture the impacts a
3 and 7 percent rates of discount, in order).

Table 6A–Summary of Range of Monetized Annualized Impacts at 3%
——————————————————————————————————————————————————–
Scenario: No replacement labor Scenario: All asylum applicants Primary
found for asylum applicants replaced with other workers (average of the
——————————————————————– highest high
Category Description and the lowest
Low wage High wage Low wage High wage low, for each
row)
——————————————————————————————————————————————————–
Transfers:
Transfers–Compensation………… Compensation transferred $0.00 $0.00 $1,473,953,451 $4,461,386,308 $2,230,693,154
from asylum applicants to
other workers
(provisions: 365-day wait
+ end EADs early + end
recommended approvals).
Transfers–Taxes………………. Lost employment taxes paid 225,587,337 682,771,643 0.00 0.00 341,385,822
to the Federal Government
(provisions: 365-day wait
+ end EADs early + end
recommended approvals).
Costs:
Cost Subtotal–Biometrics………. Biometrics Requirements… 27,154,124 45,726,847 27,154,124 45,726,847 36,440,486
Cost Subtotal–Lost Productivity… Lost compensation used as 1,473,953,451 4,461,386,308 0.00 0.00 2,230,693,154
proxy for lost
productivity to companies
(provisions: 365-day wait
+ end EADs early + end
recommended approvals).
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
Total Costs……………….. 1,501,107,576 4,507,113,155 27,154,124 45,726,847 2,267,133,639
——————————————————————————————————————————————————–

Table 6B–Summary of Range of Monetized Annualized Impacts at 7%
——————————————————————————————————————————————————–
Scenario: No replacement labor Scenario: All asylum applicants Primary
found for asylum applicants replaced with other workers (average of the
——————————————————————– highest high
Category Description and the lowest
Low wage High wage Low wage High wage low, for each
row)
——————————————————————————————————————————————————–
Transfers:
Transfers–Compensation………… Compensation transferred $0.00 $0.00 $1,474,123,234 $4,461,900,172 $2,230,950,086
from asylum applicants to
other workers
(provisions: 365-day wait
+ end EADs early + end
recommended approvals).
Transfers–Taxes………………. Lost employment taxes paid 225,613,314 682,850,264 0 0 341,425,132
to the Federal Government
(provisions: 365-day wait
+ end EADs early + end
recommended approvals).
Costs:
Cost Subtotal–Biometrics………. Biometrics Requirements… 27,171,858 45,766,847 27,171,858 45,766,847 36,469,352
Cost Subtotal–Lost Productivity… Lost compensation used as 1,474,123,234 4,461,900,172 0.00 0.00 2,230,950,086
proxy for lost
productivity to companies
(provisions: 365-day wait
+ end EADs early + end
recommended approvals).
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
Total Costs……………….. 1,501,295,093 4,507,667,018 27,171,858 45,766,847 2,267,419,438
——————————————————————————————————————————————————–

As required by Office of Management and Budget (OMB) Circular A-4,
Table 7 presents the prepared A-4 accounting statement showing the
costs associated with this proposed regulation:

[[Page 62400]]

Table 7–OMB A-4 Accounting Statement
[$ millions, 2019] [Period of analysis: 2019-2028] ——————————————————————————————————————————————————–

——————————————————————————————————————————————————–
Category Primary estimate Minimum Maximum Source citation
estimate estimate (RIA, preamble, etc.)
——————————————————————————————————————————————————–
Benefits:
Monetized Benefits………………… (7%) N/A N/A N/A RIA.
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
(3%) N/A N/A N/A.
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
Annualized quantified, but un- N/A N/A N/A RIA.
monetized, benefits.
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
Unquantified Benefits…………………. The benefits potentially realized by the proposed rule are RIA.
qualitative and accrue to a streamlined system for employment
authorizations for asylum seekers that would reduce fraud,
improve overall integrity and operational efficiency, and
prioritize aliens with bona fide asylum claims. These impacts
stand to provide qualitative benefits to asylum seekers, the
communities in which they reside and work, the U.S.
Government, and society at large. The proposed rule aligns
with the Administration’s goals of strengthening protections
for U.S. workers in the labor market. The proposed biometrics
requirement would enhance identity verification and
management.
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
Costs:
Annualized monetized costs (discount rate (7%) 2,267.4 27.17 4,507.7 RIA.
in parenthesis).
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
(3%) 2,267.1 27.17 4,507.1 RIA.
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
Annualized quantified, but un-monetized, N/A N/A N/A RIA.
costs.
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
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. There could also be a loss of
Federal, state, and local income tax revenue.
Estimates of costs to proposals that would involve DOJ-EOIR
defensively-filed asylum applications and DHS-referrals could
not be made due to lack of data. Potential costs would involve
delayed/deferred or forgone earnings, and possible lost tax
revenue.
There would also be delayed or forgone labor income and tax RIA.
transfers for pending EAD applicants impacted by the criminal
and one-year filing provisions, renewal applicants, transfers
from the (c)(11) group, and filing bar cases, all of whom
would be subject to some of the criteria being proposed; in
addition, such impacts could also affect those who would be
eligible currently for an EAD but would be ineligible for an
EAD, or have such eligibility terminated earlier, under the
proposed rule.
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
Transfers:
Annualized monetized transfers: “on (7%) 0 0 0 RIA.
budget”.
—————————————————————-
(3%) 0 0 0
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
From whom to whom?………………… N/A
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
Annualized monetized transfers: (7%) 2,231.0 0 4,461.9 RIA.
compensation.
—————————————————————-
(3%) 2,230.7 0 4,461.4
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
From whom to whom?………………… Compensation transferred from asylum applicants to other RIA.
workers (provisions: 365-day wait + end EADs early + end
recommended approvals). Some of the deferred or forgone
earnings could be transferred from asylum applicants to
workers in the U.S. labor force or 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; these could
involve burdens to asylum applicants’ personal private or
familial support system, but could also involve public,
private, or charitable benefits-granting agencies and non-
governmental organizations (NGOs).
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
Annualized monetized transfers: taxes.. (7%) 341.4 0 682.9 RIA.
—————————————————————-
(3%) 341.4 0 682.8
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
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 (provisions: 365-
day wait + end EADs early + end recommended approvals)
——————————————————————————————————————————————————–
Category Effects Source citation
(RIA, preamble, etc.)
——————————————————————————————————————————————————–
Effects on state, local, and/or tribal DHS does not know precisely how many low age workers could be RIA.
governments. removed from the labor force due to the proposed rule. There
may also be a reduction in state and local tax revenue.
Budgets and assistance networks that provide benefits to
asylum seekers could be impacted negatively if asylum
applicants request additional support.
Effects on small businesses……………. This proposed rule does not directly regulate small entities, RFA.
but has indirect costs on small entities. DHS acknowledges
that ending EADs linked to denied DHS-affirmative asylum
claims and EADs linked to asylum cases under DOJ-EOIR purview
would result in businesses that have hired such workers
incurring labor turnover costs earlier than without this rule.
Such small businesses may also incur costs related to a
difficulty in finding workers that may not have occurred
without this rule.
Effects on wages……………………… None. RIA.
Effects on growth…………………….. None. RIA.
——————————————————————————————————————————————————–

[[Page 62401]]

As will be explained in greater detail later, the benefits
potentially realized by the proposed rule are qualitative. This rule
would reduce the incentives for aliens to file frivolous, fraudulent,
or otherwise non-meritorious asylum applications intended primarily to
obtain employment authorization or other, non-asylum-based forms of
relief from removal, thereby allowing aliens with bona fide asylum
claims to be prioritized. A streamlined system for employment
authorizations for asylum seekers would reduce fraud and improve
overall integrity and operational efficiency. DHS also believes these
administrative reforms will encourage aliens to follow the lawful
process to immigrate to the United States. These effects stand to
provide qualitative benefits to asylum seekers, communities where they
live and work, the U.S. government, and society at large.
The proposed rule also aligns with the Administration’s goals of
strengthening protections for U.S. workers in the labor market. Several
employment-based visa programs require U.S. employers to test the labor
market, comply with recruiting standards, agree to pay a certain wage
level, and agree to comply with standards for working conditions before
they can hire an alien to fill the position. These protections do not
exist in the (c)(8) EAD program. While this rule would not implement
labor market tests for the (c)(8) program, it would put in place
mechanisms to reduce fraud and deter those without bona fide claims for
asylum from filing applications for asylum primarily to obtain
employment authorization or other, non-asylum-based forms of relief
from removal. DHS believes these mechanisms will protect U.S. workers.
The proposed biometrics requirement would provide a benefit to the
U.S. government by enabling DHS to know with greater certainty the
identity of aliens requesting EADs in connection with an asylum
application. The biometrics will allow DHS to conduct criminal history
background checks to confirm the absence of a disqualifying criminal
offense, to vet the applicant’s biometrics against government databases
(e.g., FBI databases) to determine if he or she matched any criminal
activity on file, to verify the applicant’s identity, and to facilitate
card production. Along with the proposals summarized above and
discussed in detail in the preamble and regulatory impact sections of
this proposed rule, DHS plans to modify and clarify existing
regulations dealing with technical and procedural aspects of the asylum
interview process, USCIS authority regarding asylum, applicant-caused
delays in the process, and the validity period for EADs. These
provisions are not expected to generate costs. If adopted in a final
rule, the rules and criteria proposed herein relating to certain
criminal offenses and the one-year-filing bar would apply to pending
EAD applications. In order to implement the criminal ineligibility
provision, DHS will require applicants with a pending initial or
renewal (c)(8) EAD on the effective date of this rule to appear at an
ASC for biometrics collection but DHS will not collect the biometrics
services fee from these aliens. DHS will provide notice of the place,
date and time of the biometrics appointment to applicants with pending
EAD applications. Some aliens could be impacted and some may not be
granted an EAD as they would otherwise under current practice, but DHS
does not know how many could be impacted and does not estimate costs
for this provision.

2. Background and Purpose of Rule

The purpose of this proposed rule is to reform, improve, and
streamline the asylum process, so that those with bona fide asylum
claims can be prioritized and extended protection, including immediate
employment authorization based on an approved asylum application. The
provisions seek to reduce incentives to file frivolous, fraudulent, or
otherwise non-meritorious asylum applications and other forms of non-
asylum based relief primarily to obtain employment authorization. As is
detailed in the preamble, it has been decades since significant reforms
were made to the asylum process, and there have been no major statutory
changes to the asylum provisions to address the current aspects of the
immigration laws that incentivize illegal immigration to the United
States and frivolous asylum filings.
DHS has seen a surge in illegal immigration into the United States,
and USCIS currently faces a critical asylum backlog that has crippled
the agency’s ability to timely screen and vet applicants awaiting a
decision.
As a result of regulatory review required by E.O. 13767, Border
Security and Immigration Enforcement Improvements, DHS identified the
regulations that were inconsistent with this order and is revising them
in this proposed rule. While working with Congress on legal reforms to
deter frivolous, fraudulent, and non-meritorious filings, DHS is also
taking administrative steps to improve the asylum application process,
pursuant to the Secretary’s authorities over immigration policy and
enforcement. The broad goal is to minimize abuse of the system by
inadmissible or removable aliens who are not eligible for asylum, but
who seek to prolong their stay in the United States. The proposed
changes will remove incentives for illegal aliens to cross the border
for economic reasons and better allow DHS to process bona fide asylum
seekers in an expedited manner. As a result, bona fide asylum
applications would be adjudicated timelier, and the significant
benefits associated with grants of asylum would be realized sooner.
—————————————————————————

A grant of asylum allows an alien to remain in the United
States, creates a path to lawful permanent residence and
citizenship, and allows for certain family members to obtain lawful
immigration status. See INA sec. 208(b)(3) (allowing derivative
asylum for asylee’s spouse and unmarried children); INA sec.
208(c)(1) (prohibiting removal or return of an alien granted asylum
to alien’s country of nationality, or in the case of a person have
no nationality, the country of last habitual residence); INA sec.
209(b) (allowing adjustment of status of aliens granted asylum); INA
sec. 316(a) (describing requirements for naturalization of lawful
permanent residents). An asylee is authorized to work in the United
States and may receive financial assistance from the Federal
Government. See INA sec. 208(c)(1)(B) (authorizing aliens granted
asylum to engage in employment in the United States); 8 U.S.C.
1612(a)(2)(A), (b)(2)(A), 1613(b)(1) (describing eligibility for
Federal Government assistance).
—————————————————————————

Information and data pertinent to the ensuing analysis is provided.
A thorough qualitative discussion of the asylum application and related
employment authorization application process is available in the
preamble. Table 8 provides data concerning DHS affirmative asylum
filings via Form I-589 for the five-year span of fiscal years 2014-
2018.
—————————————————————————

The data are collected from monthly “Affirmative Asylum
Statistics” reports, which are publicly available at the USCIS data
reporting website under the “Asylum” search filter: <a href=”https://www.uscis.gov/tools/reports-studies/immigration-forms-datareport”>https://www.uscis.gov/tools/reports-studies/immigration-forms-datareport</a>.
The data were applicable as of April 1, 2019.

[[Page 62402]]

Table 8–USCIS Form I-589 Affirmative Asylum Petition Data
[FY 2014-2018] ——————————————————————————————————————————————————–
FY Receipts Approvals Denials Admin. close Referrals–DOJ-EOIR Pending pool
——————————————————————————————————————————————————–
2014……………………………………….. 56,912 11,841 707 1,849 15,969 46,928
2015……………………………………….. 84,236 15,999 458 3,010 20,353 85,593
2016……………………………………….. 115,888 10,762 138 3,785 16,564 152,516
2017……………………………………….. 142,760 15,229 137 5,825 29,639 252,627
2018……………………………………….. 108,031 19,978 927 9,436 52,221 314,453
—————————————————————————————————-
5-year total…………………………….. 507,827 73,809 2,367 23,905 134,746 …………..
—————————————————————————————————-
Average……………………………… 101,565 14,762 473 4,781 26,949 170,423
——————————————————————————————————————————————————–

As can be gathered from Table 8, denials for DHS affirmative asylum
filings are low, and approvals are also low, relatively speaking.
Foremost, DHS administratively closes 4.7 percent of receipts. More
significantly, DHS refers a large share of cases to DOJ-EOIR. The
average referral rate is 26.5 percent, which ranged from a low of 14.4
percent to a high of 49.2 over the period. Measured against receipts,
the average approval and denial rates are 14.5 percent and .5 percent,
respectively. However, if the basis is recalibrated to “adjudicated
cases”–the sum of approvals, denials, referrals (interviewed), and
filing bar referrals–more salient approval and denial rates of 38.2
and 1.2 percent, respectively, are obtained. These rates are more
tractable because they remove the impact of administrative closures,
referrals that did not involve an USCIS interview, and most
importantly, the effect embodied in the growth of the pending (hence
not yet processed cases) pool. Against “adjudicated cases,” DHS
referred more than three-fifths (60.6 percent) of asylum cases to DOJ-
EOIR, and this share does not include non-interview referrals. As it
relates to the total of all referrals, on average the share attributed
to interview, filing bar, non-interview cases is 56, 29, and 14
percent, respectively.
—————————————————————————

USCIS administratively closes I-589s where no decision can
be made on the application by USCIS for various reasons, including,
but not limited to: (1) lack of jurisdiction over the I-589 where
the applicant is already in removal proceedings before EOIR and not
a UAC (in those cases, the case is administratively closed but no
NTA is issued since the person is already in proceedings); (2) an
application is abandoned, withdrawn, or the applicant fails to show
up for the interview or biometric services appointment after
rescheduling options are exhausted (in those cases, no decision is
made on eligibility but an NTA would be issued if the person is out
of status and is still in the U.S.); (3) the applicant has a final
administrative removal or ICE has reinstated a prior removal order
(in those cases, the I-589 would be administratively closed and the
person would be referred for a reasonable fear screening).
The adjudicated basis also excludes some other minor
categories such as “dismissals,” which comprise a handful of cases
each year. It is noted that the definitional basis for adjudicated
cases is the same as (or similar to with minor adjustments) the
basis that DHS uses in much of its public facing and official
reporting on asylum. Relevant calculations: The FY 2014-2018 average
of “adjudicated” cases, as defined in the text, is 193,301.
Dividing the annual average approvals of 73,809 by 193,301 yields
the approval rate of 38.2 percent. Dividing the annual average
denials of 2,387 by 193,301 yields the denial rate of 1.2 percent.
The non-interview referral rate is obtained by dividing the sum of
annual average filing bar and interview referrals, of 117,125, by
193,301 yields 60.6 percent. The annual average of total referrals
is 134,746. The sum of interview, filing bar, and non-interview
cases, in order of, 74,763, 42,362, and 17,621, is 134,746. Diving
each of the former by the latter yield 56, 29, and 14 percent,
respectively.
—————————————————————————

In Table 8, the average across the five-year period is provided. It
is noted that the pending pool of applications has surged, as is
evidenced by the fact that the 2017 and 2018 figures for end-of-year
pending pool far exceeded the overall five-year average. For receipts,
there has also been substantial growth, though filings declined
markedly in 2018 from 2017.
Data pertaining to DOJ-EOIR defensively-filed asylum cases was
obtained and relevant data are collated in Table 9.
—————————————————————————

The DOJ-EOIR data is publicly available under the
“Statistics and Reports” suite, “Workload and Adjudication
Statistics” section at <a href=”https://www.justice.gov/eoir/workload-and-adjudication-statistics”>https://www.justice.gov/eoir/workload-and-adjudication-statistics</a>. The data are found in the “Asylum Decision
Rates” and “Total Asylum Applications” reports, at <a href=”https://www.justice.gov/eoir/page/file/1104861/download”>https://www.justice.gov/eoir/page/file/1104861/download</a>, and <a href=”https://www.justice.gov/eoir/page/file/1106366/download”>https://www.justice.gov/eoir/page/file/1106366/download</a>, in order. The data
reflect the updated data as of January 30, 2019.
DHS Asylum cases referred to DOJ-EOIR over the period
(Table 888) on average are a higher by about 13 percent on average,
than the DOJ-EOIR Affirmative asylum filings. The primary reason is
UAC cases. DHS counts them as referrals, but, since they are already
in EOIR’s caseload as an NTA has been filed in these cases, USCIS
does not enter them into CASE-ISS and transfer the application
through the usual referral process. EOIR counts them as defensively-
filed asylum cases as opposed to affirmative asylum cases that have
been referred.

Table 9–DOJ-EOIR Asylum Caseload and Decisions
[FY 2014–2018] ——————————————————————————————————————————————————–
USCIS
FY referrals to Defense filed Total filed Cases granted Cases denied Other outcome Admin. closed
DOJ-EOIR
——————————————————————————————————————————————————–
2014……………………………… 16,258 31,196 47,454 8,562 9,292 10,418 9,540
2015……………………………… 17,289 46,203 63,492 8,113 8,847 11,018 15,420
2016……………………………… 12,718 69,349 82,067 8,684 11,737 12,883 21,623
2017……………………………… 22,143 121,418 143,561 10,539 17,632 14,745 10,889
2018……………………………… 49,118 111,887 161,005 13,161 26,594 22,328 2,098
—————————————————————————————————————
5-year total…………………… 117,526 380,053 497,579 49,059 74,102 71,392 117,526
—————————————————————————————————————
Average……………………. 23,505 76,011 99,516 9,812 14,820 14,278 23,505
—————————————————————————————————————

[[Page 62403]]

Share of completions…….. ………….. ………….. ………….. 15.7% 23.7% 22.9% 37.7%
——————————————————————————————————————————————————–

The first data column in Table 9 captures DHS referrals to DOJ-
EOIR, and generally corresponds with data in the fifth data column of
Table 8. As the data indicate, asylum filings at DOJ-EOIR have also
increased sharply over the five-year period, noting that the increase
in defensive filings over the last three years has been particularly
strong. Defensive cases also comprise the bulk of filings, more than
tripling affirmative filings on average. Over the entire five-year
period there were 312,079 total completions, noting that this tally
comprises grants, denials, cases that were administratively closured,
and “others.” The latter comprises defensively-filed asylum
applications that were abandoned, not adjudicated, or withdrawn.
Table 10 provides data on (c)(8) I-765 filings, and DHS notes that
these apply to both DHS affirmative filings (including referrals to
DOJ-EOIR) and those filings connected to defensively-filed asylum
cases.

Table 10–DHS I-765(c)(8) Filing Data for DHS Affirmative filings (Including Referrals to DOJ-EOIR), and Defensive Cases
[FY 2014–2018] ——————————————————————————————————————————————————–
Initials Renewals
FY ———————————————————————————————–
Receipts Approve Deny Receipts Approve Deny
——————————————————————————————————————————————————–
2014……………………………………………. 62,169 48,596 10,547 45,103 42,940 2,517
2015……………………………………………. 106,030 85,606 13,080 72,559 63,631 3,221
2016……………………………………………. 169,970 152,283 14,330 128,610 115,555 4,156
2017……………………………………………. 261,782 234,080 21,179 212,255 166,208 4,854
2018……………………………………………. 262,991 246,725 29,091 62,289 91,010 4,685
———————————————————————————————–
5-year total…………………………………. 862,942 767,290 88,227 520,816 479,344 19,433
———————————————————————————————–
Average………………………………….. 172,588 153,458 17,645 104,163 95,869 3,887
——————————————————————————————————————————————————–

As Table 10 indicates, the number of employment authorization
applications filed under the (c)(8) eligibility category has increased
steadily since 2014, although the trend appears to have levelled off in
2018 (it is too early to tell if this will continue) at a historically
high level. Over the entire period, 89 percent of initial filings for
work authorization were approved. There is also a relatively high rate
of renewal filings, and 62.5 percent of initial approvals were followed
by an approved renewal.
—————————————————————————

Relevant calculations: for approval rate, 153,458 average
approvals/172,588 average receipts = .889, and for renewal rate,
95,869 average renewals/153,458 initial approvals = .6247. Both
decimals are rounded and multiplied by 100.
The (c)(8) I-765 data was provided by the USCIS Office of
Performance and Quality (OPQ) from file tracking data (data accessed
on Jan. 19, 2019).
—————————————————————————

DHS obtained and performed analysis on a data set capturing a
portion of (c)(8) Form I-765 information that covers principal
applicants and dependents who also filed an I-589 Form with DHS (i.e.
DHS affirmative cases, including DOJ-EOIR referrals), from 2014 through
2018. Details and caveats concerning this data set are dealt with
in detail in ensuing discussion of the costs of the proposed 365 EAD
filing time wait. Based on analysis of this data, several time-centered
variables are developed that are relevant to the forthcoming analysis.
These indicators are produced and displayed in Table 11.

[[Page 62404]]

Table 11–Calculated Time Intervals for DHS Affirmative Filings [Including DOJ-EOIR Referrals)
(Average calendar days, FY 2014–2018] —————————————————————————————————————-
I-589 process
I-589 I-765(c)(8) time for DHS Time between I- I-589
affirmative process time affirmative 589 filing affirmative
FY filing to I- for cases (excl. with DHS and filing to I-
765(c)(8) affirmative DOJ-EOIR referral to 765(c)(8)
filing cases referral DOJ-EOIR approval
interval cases) interval
—————————————————————————————————————-
2014………………………. 223 83 820 590 307
2015………………………. 228 84 812 737 312
2016………………………. 231 68 537 476 298
2017………………………. 210 67 380 278 277
2018………………………. 181 43 190 84 223
——————————————————————————-
5-Yr Average……………….. 215 69 * N/A * N/A 283
—————————————————————————————————————-
* DHS does not show a 5-year average for these time intervals because they are directly affected by the change
from FIFO to LIFO processing.

The data presented in Table 11 capture average calendar days.
The `I-589 process time’ reflects the filing time to decision for DHS
affirmative cases only, as DHS does not have data on I-589 process time
for cases referred to DOJ-EOIR. The following column captures the
average time interval between when an I-589 was filed with DHS and when
it was referred to DOJ-EOIR. The final column captures the average time
interval between when an I-589 was filed with DHS and a (c)(8) I-765
was approved. As is readily seen, there have been substantial declines
in all of the intervals.
—————————————————————————

The final data column captures the important “wait” time,
between the filing date of the I-589 asylum petition and the
approval of a (c)(8) I-765. This interval captures the amount of
time an individual has between filing for asylum and being able to
work and earn labor income. This metric is not exact though, as once
a favorable decision is made concerning the EAD application, it
takes some time to finalize and send the approval notice.
—————————————————————————

Before developing the general and provision-specific populations
that the rule could impact, a final data element is provided. In
January 2018, USCIS reinstituted its LIFO scheduling priority for
asylum applications. DHS partitioned out LIFO cases starting after
January 2018 until the end of January 2019 to capture a full calendar
year of time. The mean processing time was 166 days, which is even
lower than the 190-day average for DHS adjudicated cases displayed in
Table 11 for the fiscal year 2018.
3. Population
In this section, the baseline population estimates are conducted
for the rule in general and each specific provision. The term
“baseline” applies to the maximum population that the rule could
involve. However, an important consideration in this regard is that
there could be feedback from one provision that affects the baseline
population. In the ensuing section on costs, the baseline figures will
be tuned and modified to reflect the specific populations that could be
impacted by the proposed provisions. These adjusted populations will be
the ones incurring specified cost impacts.
The proposed rule would require aliens who file for an EAD under
the (c)(8) asylum category to submit biometrics and pay the $85
biometric services fee. This biometrics requirement is the encompassing
provision that captures the largest population under the rule. There
will also be a small burden increase associated with the Form I-765.
Asylum applicants filing for employment authorization under (c)(8) will
be required to attend a biometric services appointment and will also
need to answer new, additional questions on the form relating to new
eligibility requirements, and read the associated instructions. USCIS
estimates that the biometric services appointment will add an
additional 1 hour and 10 minutes, while reading the instructions and
answering the questions will add an estimated 15 minutes to the overall
Form I-765 time burden for this category of filers. The encompassing
population is the average of 172,588 initial filers would incur the
small time burden and biometrics requirement (Table 10). In addition,
current EAD holders who file for renewals would also submit biometrics
and pay the $85 biometric services fee. Currently, initial (c)(8) I-765
filers do not pay the I-765 filing fee, but renewal filers do, and this
proposed rule does not suggest a change to the protocol. The annual
average renewal (c)(8) I-765 filing population is 104,163 (Table 10).
The proposed rule would require all asylum applicants to wait 365
calendar days before filing for an initial EAD. Currently, applicants
have a 150-day waiting period before they can file for an initial
(c)(8) EAD. However, applicants whose initial EAD applications are
denied would not be affected, and renewal EADs would not be affected by
the proposed 365-day waiting period. Hence, the baseline population for
the 365-calendar-day waiting period provision is the average number of
initial (c)(8) I-765 approvals from FY 2014-2018, which is 153,458
(Table 10).
DHS is proposing to eliminate the preferential category of
recommended approvals for asylum, under which an asylum applicant can
file an EAD request upon initial favorable review by an asylum officer,
prior to completion of all background, security, and related checks.
Currently, aliens who have received a notice of recommended approval
are able to request employment authorization ahead of the waiting
period for those with pending asylum applications. From FY 2014 to FY
2018, DHS issued 15,359 recommended approvals, or 3,072 on average
annually. This population would be subject to the proposed rule.
The proposed rule would make any alien who entered or attempted to
enter the United States illegally ineligible for a discretionary EAD,
absent mitigating circumstances discussed in the preamble. DHS does not
know how many persons would have been subject to this provision in the
past, and cannot determine this population going forward. The proposed
rule also would bar any alien who has been convicted of or charged with
a serious crime from eligibility for a discretionary EAD, with some
exceptions, as is discussed in

[[Page 62405]]

detail in the preamble. DHS does not know how many persons would have
been subject to this provision in the past and cannot determine this
sub-population going forward. While individual adjudicative and
security-related records can capture evidence and factors related to
criminal activity, such information is not available in a dataset that
can be queried for the requisite type of analysis and estimation
needed.
DHS proposes to terminate an alien’s employment authorization
connected to affirmative asylum applications on the date the asylum
application is denied or dismissed by USCIS. Currently, such EADs
terminate within 60 days after a USCIS asylum officer denies the
application or on the date of the expiration of the EAD, whichever is
longer. DHS analysis reveals that about 215 EADs were approved annually
on average concomitant to denied DHS affirmative asylum claims; as of
the present write-up, 360 such EADs are valid. The proposal to
eliminate EADs linked to DHS affirmative asylum denials would end the
validity of those EADs earlier than they otherwise end.
DHS is also proposing to revise its regulations prescribing when
employment authorization terminates following the denial of an asylum
application by an IJ or BIA. DHS cannot determine how many DOJ-EOIR
cases (either via DHS referral or defensive) apply to either the annual
or existing population because DHS does not have granular data on DOJ-
EOIR cases that would facilitate analysis of EADs. This rule proposes
that employment authorization would continue for 30 days following the
date that an IJ denies an asylum application to allow for a possible
appeal of the denial to the BIA. Currently, such EADs are allowed to
naturally expire according to the terms of their EAD, unless the
applicant seeks administrative or judicial review.
The rule is proposing that EAD applications under the (c)(8) asylum
category that are pending adjudication when the rule takes effect would
be subject to the criminal and one-year-bar provisions proposed in the
rule. File tracking data reveals that as of April 1, 2019, 14,451
pending EAD applications would be impacted, as they would be subject to
some of the criteria in the proposed rule.0 Some of these pending
cases that would be granted an EAD under the current process could be
denied as a result of the rule, but DHS has no way of predicting how
many would be affected as such. In order to implement the criminal
ineligibility provision for the pending population, DHS would require
applicants with a pending initial or renewal (c)(8) EAD on the
effective date of this rule to appear at an ASC for biometrics
collection, but would not collect the biometrics services fee from
these aliens.
—————————————————————————

0 This population estimate is based on current volumes and
may vary depending on when this rule becomes final.
—————————————————————————

DHS proposes to bar from eligibility for employment authorization
aliens who failed to file for asylum within one year of their last
arrival in the United States, as required by law, if an asylum officer
or IJ determines that an exception to the one-year filing bar does not
apply. This bar would not apply to unaccompanied alien children. From
FY 2014 to FY 2018, DHS referred 42,362 cases to DOJ-EOIR based on the
one-year filing bar, for an annual average of 8,472.
The proposed rule seeks to clarify that aliens who are paroled from
custody after receiving a positive credible fear or reasonable fear
determination are not eligible to seek immediate work authorization
under 8 CFR 274a.12(c)(11), although, historically, USCIS has granted
many of these requests. Aliens could still file under the (c)(8)
category, if eligible. However, they would be subject to the proposed
365-day wait period. From FY 2014 to FY 2018, an average of 13,000
applications sought employment authorization through the (c)(11)
category.
Table 12 presents a summary of the populations that could be
affected by the proposed rule.

Table 12–Summary of Asylum EAD Populations Under the Proposed Rule
[Annual] ————————————————————————
Abbreviated provision (description) Population estimate
————————————————————————
A. I-765(c)(8) initial filers– 172,588.
biometrics.
B. I-765(c)(8) renewal filers– 104,163.
biometrics.
C. Enact 365-day EAD filing wait period 153,458.
D. Eliminate recommended approvals….. 3,072.
E. Bar criminals from obtaining EADs… Unknown.
F. End EADs for denied/dismissed asylum <bullet> DHS affirmative = 215
claims. annually and 360 currently
valid.
<bullet> Affirmative referrals
to DOJ-EOIR = Unknown.
<bullet> DOJ-EOIR defensive =
Unknown.
G. Bar for illegal entry into the U.S.. Unknown.
H. One-year asylum filing bar………. 8,472.
I. Pending (c)(8) I-765 under proposed 14,451.
conditions.
J. Clarify(c)(11) I-765 eligibility…. 13,000.
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
Total Proposed Rule Population….. 304,562.
————————————————————————

In order to derive the total population potentially impacted by the
rule, we add the annual flow volumes of the encompassing current
biometrics (and time burden) population of 172,588 and the renewal
filing volume of 104,163, which total to 276,751. To this sub-total,
adding the potential 13,000 (c)(11) filers yields 289,751, which is the
encompassing biometrics population. Since the other sub-populations
collated in Table 12 are, by definition, (c)(8) I-765 filers, we do not
add them to the flow volume, to safeguard against double-counting. But
for the first year, the expected annual population of 289,751 is
annotated to include two pools that would be impacted by the proposed
rule; (i) the population of pending (c)(8) I-765 applications (14,451);
and, (ii) the 360 existing EADs

[[Page 62406]]

that are connected to denied affirmative asylum claims that could be
ended early. These two pools total to 14,811 which, when added to the
expected annual flow volume, yields a maximum population of 304,562,
which could be expected in the first year the rule takes effect.
Starting in year two, the population would expectedly revert to the
annualized flow volume of 289,751, because the two added pools would
not be a factor after the first year.
Having estimated the general population subject to the rule and the
sub-populations germane to the specific provisions, DHS next conducts
the economic impact assessment, noting, as was done in the introduction
to this section, that the populations reported above are adjusted for
technical considerations regarding the effects.1
—————————————————————————

1 Preliminary data revisions indicate that the (c)(8) I-765
filings and approvals in 2018 and 2017 could be higher than reported
herein (Table 10). Finalized adjustments to the populations based on
revised and validated data will be made at the appropriate stage of
final rule development.
—————————————————————————

4. Transfers, Costs and Benefits of This Proposed Rule
a. Costs
This section will be parsed into three modules. In Module 1, some
key assumptions that will apply to multiple provisions are established.
Module 2 develops quantitative costs and transfers for relevant
provisions, while Module 3 covers costs and transfers that are not
amenable to quantification.
Module 1. Data and Assumptions
As was mentioned in the “Population” section above, DHS obtained
a data set capturing (c)(8) I-765 filing data for initial applicants.
This data include a large number of variables. DHS also obtained
information on affirmatively-filed asylum applications, and integrated
elements of the two data sets to capture information on affirmative
asylum applicants who also filed for an EAD. Our analysis is based on
this large scale data set that captured numerous variables important to
the analysis. Several key assumptions and foundations apply across
multiple provisions, which, in favor of brevity and readability, are
introduced up front and only discussed hereafter where necessary.
For the proposed provisions that would delay or prohibit an asylum
applicant from earning work authorization, the impacts of this rule
would include both distributional effects (which are transfers) and
costs. These distributional impacts would fall to the EAD holders in
the form of lost or delayed compensation (wages and benefits). A
portion of this lost compensation would be transferred from these
aliens 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 costs borne by companies that would
have hired the asylum applicants had they been in the labor market
earlier, but were unable to find available replacement workers.
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. As a result, DHS 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). 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 provisions that would delay or prohibit an asylum
applicant from obtaining work authorization–either as distributional
impacts (transfers) or as a proxy for businesses’ cost for lost
productivity.
Furthermore, in instances where a company cannot hire replacement
labor for the position the asylum applicant would have filled, such
delays may result in tax transfer considerations to the government. It
is difficult to quantify income tax transfers because individual tax
situations vary widely, but DHS estimates the potential reduction in
transfer payments to 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).2 With both the employee
and employer not paying their respective portion of Medicare and Social
Security taxes, the total estimated reduction in tax transfer payments
from employees and employers to Medicare and Social Security is 15.3
percent.3 We will rely on this total tax rate where applicable.
—————————————————————————

2 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>. 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>.
3 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.
—————————————————————————

The assessments of possible distributional impacts rely on the
implicit assumption that everyone who received an approved (c)(8) EAD
entered the labor force and found work, and thus earned wages of labor.
We believe this assumption is justifiable because applicants would
generally not have expended the direct and opportunity costs of
applying for an EAD if they did not expect to recoup an economic
benefit. Furthermore, the unemployment rate is currently, and has been
recently, low by historical standards, currently sitting at 3.6
percent, making it likely that such labor force entrants have found
work.4
—————————————————————————

4 This unemployment rate reflects the Bureau of Labor
Statistics (BLS) most recent data, for April 2019. It can be found
in the “Employment Situation Summary” of the Economic News Release
section: <a href=”https://www.bls.gov/news.release/empsit.toc.htm”>https://www.bls.gov/news.release/empsit.toc.htm</a>.
—————————————————————————

Because the (c)(8) EAD does not include or 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
employ such workers. In some DHS rulemakings, the estimates of
distributional impacts and time-related opportunity costs were linked
to the Federal minimum wage for new entrants to the labor force. The
Federal minimum wage is $7.25, which, when adjusted for benefits by a
multiple of 1.46, is $10.59 per hour, with an annual salary of
$15,080.5 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,

[[Page 62407]]

even within states, there are multiple tiers.6 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 is 13.8
percent higher than the Federal minimum wage.7 While DHS does not
rule out the possibility that some portion of the population might earn
wages at the average level for all occupations, without solid a priori
or empirical 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. The
fully-loaded average hourly wage is $36.47. All of the quantified
estimates of costs and transfer payments in this analysis incorporate
lower and upper bounds based on these wages.8
—————————————————————————

5 The benefits-to-wage multiplier is calculated by the BLS
as (Total Employee Compensation per hour)/(Wages and Salaries per
hour) = $36.32/$24.91 = 1.458 (1.46 rounded). See Economic News
Release, Employer Cost for Employee Compensation (March 2019), U.S.
Dept. of Labor, BLS, 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 (March
19, 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 for annual Federal minimum salary:
Hourly wage of $10.59 x 2,080 annual work hours = $15,080.
6 The EPI report is 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>.
7 Calculations (1) for prevailing minimum wage: $8.25 hourly
wage x benefits burden of 1.46 = $12.05; (2) (($12.05 wage-$10.59
wage)/$10.59)) wage = .1378, which rounded and multiplied by 100 =
13.8 percent.
8 The average wage for all occupations is found BLS
Occupational Employment Statistics, May 2018 National Occupational
Employment and Wage Estimates, and reflects the 2017 average for all
occupations nationally. The data is 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>. Calculation: hourly wage of $24.98
x benefits burden (1.46) = $36.47.
—————————————————————————

Most of the cost impacts will result from delayed or forgone
earnings to asylum applicants. Since the data analysis centers on
calendar days, and costs are specifically linked to hours, we apply a
scalar developed as follows. Calendar days are transformed into work
days to account for the actuality that typically, 5 out of 7, or 71.4
percent, of the calendar week is allotted to work-time, and that a
workday is typically 8 hours. Based on the prevailing minimum wage of
$12.05, the combined scalar is $68.83, and, based on the average wage
it is $208.32.9 In summary, based on the prevailing minimum wage
relied upon, each calendar day generates $68.83 dollars in relevant
delayed or forgone earnings. It follows that for the upper wage bound
that each calendar day generates $208.32 dollars in relevant delayed or
forgone earnings/delayed earnings.
—————————————————————————

9 Calculations: .714 x 8 hours per day x $12.05 wage =
$68.83, and .714 x 8 hours per day x $36.47 wage = $208.32
(rounded).
—————————————————————————

Module 2. Quantified Cost Impacts and Transfers
As was mentioned above, DHS proposes to require all asylum
applicants to wait 365 calendar days before filing for an initial EAD.
Currently, applicants have a 150-day waiting period before they can
file for an initial (c)(8) EAD. The baseline population specific to the
365-day wait period is the average annual flow of initial (c)(8) EAD
approvals (153,458, Table 10), as there would not be a cost for denied
applicants. However, the DHS data set alluded to above captures about
39,000 annual affirmatively filed cases, including cases later referred
to DOJ-EOIR, for which DHS could conduct analysis on, which represents
about a quarter of the approval population. Of the 153,458 average
annual EAD approvals, DHS is able to conduct a quantified analysis of
the impacts of the proposed 365-day wait on only these 39,000
affirmative asylum applicants it has in this dataset, below. The
analysis of the 365-day proposed EAD filing wait involves the
interaction between data germane to the asylum cases and the EAD
simultaneously. In this context, we discuss several reasons why the
analyzable set share is relatively low. Foremost, it captures no
defensively-filed asylum cases. Second, it does not capture cases
germane to pending asylum cases–it captures cases in which a DHS
decision or referral to DOJ-EOIR was made. Third, the data had to be
obtained by developing a program to query several disparate data sets
at once and match data between them in a structured format, with dozens
of data points and indicators for each case. For cases in which one or
more of the key data points was missing or not viable, the analysis as
required was not possible. DHS parsed and filtered the data to exclude
extreme outliers and erroneous data to obtain the most viable and
tractable data amenable for the analysis. For the EADs associated with
affirmative asylum filings adjudicated by DHS for which data are
available, a reasonably detailed estimation of the impacts from
changing the wait period to file for employment authorization from the
150-day EAD clock to 365 days can be conducted. For affirmative cases
referred to DOJ-EOIR by DHS for which data are available some
estimation can be performed, but not with the same extent of precision
and completeness, due to data constraints. This part of the analysis
focuses on the DHS affirmative asylum cases for which complete data is
available, and for DHS affirmative cases referred to DOJ-EOIR, for
which some data is available. DHS does not have complete data for the
“residual” population, and estimates a maximum potential impact for
this population separately.
The analysis of the 365-day wait begins with consideration that
some aliens, for whatever reason, did not file for an EAD until after
365 days. Our analysis of the approximately 39,000 I-765 (c)(8) initial
EAD approvals for affirmative asylum indicate that this group comprises
10.2 percent of the 39,000 approved EADs with available data.
Technically, this group, comprising 3,978 EADs, would not be impacted
by the proposed 365-day wait, and, adjusting for them yields a
“narrowed” baseline of 35,022. While the percentage filing for an EAD
after 365 days could vary in the future, it is integrated herein for
the cost estimates.
As noted above, the impact of the proposed provision depends on the
interaction between the asylum decision and the EAD approval, since a
granted asylum application provides de facto work authorization.
Therefore, the narrowed baseline can be decomposed into specific cost-
segments to more appropriately hone the potential impacts. There has
been a substantial reduction in DHS affirmative asylum processing time
over the five-year span 2014-2018, and the adoption of LIFO processing
has further contributed to the reduction. As noted above, in January
2018, USCIS reinstituted LIFO processing. Although DHS typically relies
on 3- or 5-year averages in most cost benchmarks, in this specific
case, since LIFO is more likely to be representative of the future than
an average of four years of FIFO and one year of LIFO, and, since it
appears to have had a significant impact on asylum processing times,
the costs are benchmarked to the calendar year of time covering the end
of January 2018 to the end of January 2019 for DHS affirmative asylum
decisions.
Of the narrowed baseline, DHS referrals to DOJ-EOIR comprise 74.4
percent (26,056 cases) and DHS affirmative adjudication comprises 25.6
percent (8,966 cases) annually. The narrowed baseline for DHS
affirmative asylum is parsed into four groups, A-D, that capture
different cost segments germane to the potential interaction between
approved asylum and the EAD and expected future conditions. Group A
comprises DHS affirmative asylum adjudicated prior to 365 days, in
which the EAD was “binding”. The latter

[[Page 62408]]

impart that the EAD was approved prior to the asylum decision. For
Group A, because the asylum application for these applicants would be
adjudicated prior to the proposed 365-day wait period, the cost in
terms of the proposed rule is the time interval between the current
wait time and asylum approval. To explain this via an example, consider
an individual that currently files for an EAD at the 150-day mark and
has it approved 40 days later, at 190 days. If the concomitant asylum
adjudication is at the 200-day mark, the true benefit the EAD could
provide is 10 days (assuming the asylum claim is approved). Table 13 is
introduced, which shows that Group A represented 11 percent of the
narrowed baseline, or 3,852 aliens annually, and the average impact in
terms of the EAD benefit is 53 days (in Table 13 all the shares are
provided on the basis of the narrow baseline).
Group B similarly consists of DHS affirmative asylum adjudicated
prior to 365 days, but in contradistinction to Group A, under Group B
the EAD was “non-binding”–which means the grant of asylum could
provide de facto work authorization, as it was adjudicated before the
EAD. Because of this, Group B would not incur a cost impact in terms of
delayed earnings from the proposed provision. For this 9.5 percent of
the narrowed baseline, or 3,327 aliens, the EAD benefit was zero (as it
was non-binding). Essentially, the EAD approval was inconsequential,
and invoked a net cost because the filing costs were sunk. Hence, the
cost in terms of the proposed rule is nil, but the forgone filing
(sunk) costs can appropriately be credited as cost-savings.
A key takeaway is that Groups A and B would potentially not file
for an EAD in the future, since the asylum application was adjudicated
in less than the proposed 365-day wait period to apply for employment
authorization. Moreover, a key inference is that under LIFO, the
majority of DHS affirmative asylum cases were adjudicated in less than
one year. Accordingly, forgone filing costs for the 7,180 aliens are
accredited a cost-savings. There is no filing fee for the initial
(c)(8) EAD, and the time burden is currently 4.5 hours, which includes
the time associated with submitting two passport-style photos along
with the application. The Department of State (DOS) estimates that
passport photos cost about $20 per application.0 At the lower wage
bound of $12.05, the time related cost is $54.23, which, when added to
the photo cost of $20, yields a per person cost of $74.25 (rounded to
$74.3). The cost savings accruing to this group (A and B) would be
$533,438 annually. At the high wage bound, cost-savings per person
would be $184.10 and cost-savings to the group would be $1,321,748
annually. DHS notes that this cost-savings estimate assumes the full
sub-population would not file under the circumstances. However, as was
mentioned in the preamble, some aliens might file for an EAD after
being granted asylum if they want to have documentation that reflects
that they are employment authorized.
—————————————————————————

0 DOS estimates an average cost of $10 per passport photo in
the Paperwork Reduction Act (PRA). Supporting Statement found under
OMB control number 1450-0004. A copy of the Supporting Statement is
found on <a href=”http://Reginfo.gov”>Reginfo.gov</a> at: <a href=”http://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201102-1405-001″>http://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201102-1405-001</a> (see question #13 of the
Supporting Statement).
—————————————————————————

Group C involves DHS affirmative asylum adjudicated after 365 days.
It is within this context that some assumptions need to be established.
We assume that in the future, all EAD filers would file at exactly 365
days and the processing time would be the global average of 69 days
(Table 11), noting that the processing time relies on the five-year
average as it is not directly impacted by the change to LIFO asylum
processing). These assumptions make the analysis tractable and do not
impose a loss of generality. For Group C, the asylum claim is decided
after 434 days, which is the sum of the proposed 365 day wait and the
average 69 EAD processing days. This group of 981 cases comprises 2.8
percent of the narrowed baseline. For this group, the EAD is binding
(universally) and the impact accrues to the difference between the
global average current EAD-wait time of 283 days (Table 11) and 434
days, which is 151 days.
For Group D, affirmative asylum is currently adjudicated between
365 and 434 days. For Group D, the EAD was approved before the asylum
decision, and was therefore binding. But under the proposed rule,
retaining the assumptions from above concerning average EAD processing
time of 69 days, the EAD would “switch” to a non-binding state
because it would be granted after the asylum application was
adjudicated. As a result, there would be two impacts. The
distributional effect to Group D is equal to the current EAD benefit
(the current EAD benefit would, by definition, be strictly greater than
zero). The average calendar-day impact to this 2.3 percent of the
narrowed baseline, or 806 aliens, is calculated to be 130 days.
Secondly, because under the proposed rule the asylum application would
be adjudicated after 365 days but before the EAD approval, the EAD
filing costs would become sunk (i.e. while the applicant would apply
for an EAD, it would not result in any benefit). Based on the
population of 806 and the per-person filing cost of $74.30 and $184.10,
reflecting the wage bounds, sunk filing costs would be $59,849 and
$148,294, respectively. Subtracting this amount from the filing cost
savings (Groups A and B) generates “net cost-savings” that would
range from $473,588 to $1,321,748.1
—————————————————————————

1 Conceptually, a fifth group, could be added, under for
which asylum was adjudicated after 365 days but before the EAD
approval. There would be no earnings impact as a result of this
provision, but analysis reveals that no cases would fit this
conceptual category.
—————————————————————————

The remainder of the narrowed EAD approval baseline applies to DHS
referrals to DOJ-EOIR, which comprise 26,056 cases (Group E). DHS
cannot partition these cases into cost segments akin to Groups A-D for
DHS referrals to DOJ-EOIR. While the data does allow DHS to calculate
the average wait time in terms of when asylum was filed and when the
EAD was approved, because we do not have data concerning the decision
on the asylum application, the interaction between the EAD and Asylum
decision cannot be calculated. DHS analysis indicates that the impact
is 133 days, and it is requisite to justify why this figure is reported
as opposed to the 151-day impact for Group C. In practice, the average
wait time and EAD processing times for Group C differ very slightly
from the global averages reported in Table 11, but the difference is
not statistically significant. However, the current wait for DHS
referrals–measured strictly as the time interval between the filing
for affirmative asylum and the EAD approval–is larger, at 301 days,
and the difference is statistically significant.2 As a result the
difference in day-impact between Group C (151 days) and Group E (133
days) is 18 days, which is exactly the difference in current wait times
between the two, at 283 and 301, in order.
—————————————————————————

2 The tests of significance for differences in the means for
the global population and Group C population report exact
probability values (p-values) of .124 and .179, allowing
determination that the minute differences are not significant at the
95 percent level of confidence. The p-value for the difference in
the mean of 301 for DHS referrals is .042, allowing determination
that it is significantly different than the global of 283.

[[Page 62409]]

Table 13–Narrowed Baseline of EAD Approvals That Could Be Analyzed
—————————————————————————————————————-
Group Population Share (%) Group description Average days
—————————————————————————————————————-
Group A…………………………. 3,852 11.0 DHS asylum adjudicated 53
<365 days; EAD binding.
Group B…………………………. 3,327 9.5 DHS asylum adjudicated 0
<365 days; EAD non-
binding.
Group C…………………………. 981 2.8 DHS asylum adjudicated 151
>434 days; EAD binding
by definition.
Group D…………………………. 806 2.3 DHS asylum adjudicated 130
between 365-434 days;
EAD currently binding.
Group E…………………………. 26,056 74.4 DHS referrals to DOJ- 133
EOIR.
—————————————————————————————————————-

DHS notes that while working with averages makes the analysis
tractable and clearer, a caveat is that we rely on the assumption that
the (c)(8) I-765 processing time is the same before and after the
rule.3 In a sense too, we assume that the I-589 processing times,
when we benchmark to the LIFO protocol, will be the same as well. If
either change, the costs developed in Table 14 could vary. There could
be two sources of such variation in the monetized costs. First, the
populations of the subgroups would change, and, second, the day impacts
could also change.
—————————————————————————

3 DHS is also separately publishing an NPRM entitled
“Removal of 30-Day Processing Provision for Asylum Applicant-
Related Form I-765 Employment Authorization Applications,” DHS
Docket No. USCIS-2018-0001, separate from this NPRM. If adopted as a
Final Rule, that NPRM would affect current EAD processing times.
—————————————————————————

Table 14 (A and B) breaks out the cost for each group presented in
Table 13. The population germane to each group is repeated, as is the
day impact. The following three columns translate the information into
quantified costs. The data presented are undiscounted, with the low
wage estimates provided in Table 14(A) and the upper bound wage
estimates provided in Table 14(B).

Table 14(A)–Proposed 365-Day EAD Filing Wait Cost Projections Based on the Lower Wage Bound
[Undiscounted, annual] —————————————————————————————————————-
Costs per Costs
person (day (population x Tax impacts
Group Population Day impact impact x costs per (costs x
$68.83) person) 15.3%)
—————————————————————————————————————-
A…………………………. 3,852 53 $3,648 $14,053,590 $2,150,199
B…………………………. 3,327 0 0 0 0
C…………………………. 981 151 10,393 10,191,866 1,559,355
D…………………………. 806 130 8,948 7,207,587 1,102,761
E…………………………. 26,056 133 9,154 238,530,155 36,495,114
——————————————————————————-
Subtotals………………. ………….. ………….. ………….. 269,983,197 41,307,429
—————————————————————————————————————-
Minus: net costs-savings =……………………………………………… 473,588 …………..
Equals: grand total =………………………………………………….. 269,509,609 41,307,429
—————————————————————————————————————-

Table 14(B)–Proposed 365-Day EAD Filing Wait Cost Projections Based on the Upper Bound Wage Bound
(Undiscounted, Annual)
[Undiscounted, annual] —————————————————————————————————————-
Costs per Costs
person (day (population x Tax impacts
Group Population Day impact impact x costs per (costs x
$208.32) person) 15.3%)
—————————————————————————————————————-
A…………………………. 3,852 53 $11,041 $42,534,415 $6,507,766
B…………………………. 3,327 0 0 0 0
C…………………………. 981 151 31,456 30,846,571 4,719,525
D…………………………. 806 130 27,082 21,814,391 3,337,602
E…………………………. 26,056 133 27,707 721,932,323 110,455,645
——————————————————————————-
Subtotals………………. ………….. ………….. ………….. 817,127,700 125,020,538
—————————————————————————————————————-
Minus: net costs-savings =……………………………………………… 1,173,454
Equals: grand total =………………………………………………….. 815,954,246 125,020,538
—————————————————————————————————————-

Subtracting the net cost-savings from the subtotals yields the
total costs of the rule in terms of lost or delayed earnings from the
proposed 365-day wait for 39,000 of the 153,458 EADs affected annually,
which could range from

[[Page 62410]]

$269.5 million to $815.9 million annually, depending on the wage of the
asylum worker. Similarly, the reduction in tax transfer payments from
employers and employees could range from $41.3 million to $125 million
annually, depending on the wage and if companies cannot find reasonable
substitutes for the labor the asylum applicant would have provided. The
annual midrange for costs and taxes are $542.7 million and $83.2
million annually, in order. However, DHS notes that the lack of data
about DHS referrals precluded our ability to parse out potentially
lower cost segments of the 26,056 annual affirmative cases referred to
DOJ-EOIR, as we were able to do with DHS-adjudicated asylum
applications. This inability likely results in a dual effect. First,
for some segments, the day gap would be lower than the average 133
days, thus reducing deferred or lost wages and tax transfers. In
addition, there would be cost savings that would accrue to forgone
filings as some might not need to file a (c)(8) I-765. As it relates to
defensively-filed asylum cases, as was seen in groups A-D of
affirmative cases, there could be cost-savings from no longer filing an
I-765, and for cases in which the EAD was filed after 365 days, the
proposed rule would not have an impact.
In the above section, DHS analyzes 39,000 of the 153,458 affected
EAD approvals for which DHS could obtain specific data to assess the
impacts of the proposed 365-day EAD filing wait time. In this section,
DHS analyzes the remaining 114,458, the “residual” population, which
contains three groups of EAD cases linked to asylum: (i) What is likely
a small number of DHS affirmative cases for which viable data could not
be ascertained; (ii) DHS affirmative asylum cases in which the asylum
claim was pending; and (iii) defensive cases. Since we have incomplete
data on this population, USCIS estimates the day-impact as the
difference between the future projected 434 days and the global current
average of 283 days (EAD wait time), or 151 days.
For the residual population, the cost impact at the low wage bound
is $10,393 each (151 days multiplied by $68.83), which, at a population
of 114,458, generates $1,189.6 million in lost earnings and generates
$182.0 million in tax transfers annually. The cost impact at the upper
wage bound is $31,456 each (151 days multiplied by $208.32), which, at
a population of 114,458, generates $3,600.4 million in lost earnings
and generates $550.9 million in tax transfers annually.
The costs reported above represent a maximum estimate of the
potential impact for this residual population. This is because DHS
lacks data on the how many days after filing for asylum these
applicants apply for an EAD and how many days after filing for an EAD
these applicants receive an asylum decision, which would allow DHS to
parse the lower cost segments. Specifically, there may be a portion of
the residual population that currently waits more than 365-days to
apply for an EAD. The estimated 151-day delay would be overstated for
this group and would decrease the above estimated impact. Additionally,
there may be a portion of the residual population that would receive an
asylum decision in less than 434 days. The estimated 151-day impact
would also be overstated for this group. Furthermore, aliens who
receive an asylum decision in less than 434 days would not have to file
for an EAD under the proposed rule, resulting in cost savings for
forgone future filings. However, DHS notes that a large number of
defensive cases are unlikely to be adjudicated before 434 days.
Although DHS does not have the information to map defensive asylum
cases to the associated EADs, DHS was able to obtain data on defensive
asylum claims that captured the date the asylum case was received, and
the completion date. Our analysis reveals that for FY 2014-2018 the
average time interval between the two days was 624 days. Since
defensive asylum processing times have been on average (over the
studied period) greater than 434 days, relying on the 151-day impact
period is a reasonable estimate. Nevertheless, because 151 days is by
definition the maximum impact allowable in our impact setup, the
estimates are still overstated because at least some of the defensive
cases (and the DHS affirmative cases not included in the 39,000 batch
with analyzable information) would invoke asylum decisions less than
434 days. As a result, the true day-impact for some of the residual
population would be strictly less than 151 days.
This rule also proposes to incorporate a biometrics requirement
into the employment authorization process for asylum seekers.
Specifically, aliens will be required to appear at an ASC for
biometrics collection and pay a biometrics services fee. The proposed
biometrics requirement would apply to (c)(8) I-765 filers, for both
initial and renewal EAD applications. Biometrics are currently
collected for all (both affirmative and defensive) Form I-589
applicants, and they are exempt from paying the $85 biometric services
fee. However, biometrics are not currently collected when asylum
applicants apply for employment authorization. The proposed rule would
not impact the asylum filing biometrics protocol, but would require
biometrics collection at the EAD filing stage for (c)(8) I-765
applicants, as well as payment of the $85 biometric services fee.
To estimate the cost of this biometrics requirement, we begin with
the population of 289,751, which, tallied earlier, comprises the
initial, renewal, and potential (c)(11) transfer populations.
Biometrics are also not currently collected for (c)(11) I-765 filers
and thus would also be a new requirements for these 13,000 annual
filers. First, as the analysis for the 365-day filing wait period
demonstrated, a portion of filers, Groups A and B from above (20.5
percent), would potentially not file under the rule because the asylum
decision would precede the EAD approval under the proposed rule (under
the LIFO protocol). We scale the population by this percentage to yield
an adjusted population of 230,352 (289,751 multiplied by (1 minus
.205). Under the proposed collection requirement there will be
exemptions and waivers that apply to both biometrics submission and the
concomitant $85 biometric services fee (that are outside the purview of
the rule). DHS cannot predict exactly how these waivers and exemptions
will apply, but develops proxy metrics to allow for equitable
estimations to populations not yet existent, in context. Therefore, the
second stages of the population adjustment require a more detailed,
technical approach. This approach is developed next.
When an individual appears at a DHS-USCIS ASC for a biometric
collection appointment, their biometrics are digitally collected and
stored in the Customer Profile Management System (CPMS) database, which
is the USCIS data repository for biometrics submissions. DHS obtained
biometric submission data from CPMS for the five-year period 2013-2017.
The five-year average across all USCIS immigration forms was 3,619,794.
Detailed analysis of the biometrics submissions data reveals that a
small group of nine forms accounted for the vast majority, 90.5
percent, of the average biometrics submissions. These forms are: (1)
Form N-400, Application for Naturalization; (2) Form I-90, Application
to Replace Permanent Resident Card; (3) Form I-765, Application for
Employment Authorization; (4) Form I-485, Application to Register
Permanent Residence or Adjust Status; (5) Form I-

[[Page 62411]]

589, Application for Asylum and Withholding of Removal; (6) Form I-
821D, Consideration of Deferred Action for Childhood Arrivals; (7) Form
I-131, Application for Travel Document; (8) Form I-751, Petition to
Remove the Conditions on Residence; and (9) Form I-601A, Application
for Provisional Unlawful Presence Waiver (noted here are that two of
the forms, I-765 and I-589 are involved in the presently proposed
rule). The remainder majority of forms are characterized by very small
populations, very few biometrics submissions (for which many accounted
for zero submissions in terms of percentage and number), and
unspecified form types. The biometrics volumes for the prevalent group
of nine forms (“PREV-9”) are presented in Table 15.

Table 15–Biometric Submissions by Form Grouping
[FY 2013-FY 2017] ——————————————————————————————————————————————————–
Form FY 2013 FY 2014 FY 2015 FY 2016 FY 2017 5-Year avg. Share
——————————————————————————————————————————————————–
PREV-9:
N-400…………………………. 778,172 779,221 772,648 961,092 1,013,252 860,877 23.78
I-90………………………….. 554,918 790,069 780,050 743,589 770,552 727,836 20.11
I-765…………………………. 421,011 391,650 800,711 489,553 588,008 538,187 14.87
I-485…………………………. 459,298 506,991 494,664 500,369 547,755 501,815 13.86
I-589…………………………. 95,938 116,668 173,248 230,900 304,308 184,212 5.09
I-821D………………………… 350,339 102,192 242,101 125,489 224,899 209,004 5.77
I-131…………………………. 89,146 87,012 87,755 88,977 86,299 87,838 2.43
I-751…………………………. 185,587 172,478 93,359 71,823 83,417 121,333 3.35
I-601A………………………… 16,381 37,293 48,978 52,654 67,494 44,560 1.23
PREV-9 (all)………………………. 2,950,790 2,983,574 3,493,514 3,264,446 3,685,984 3,275,662 90.5%
Other Forms……………………….. 241,605 198,537 709,577 328,339 242,604 344,132 9.5%
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
Total…………………………. 3,192,395 3,182,111 4,203,091 3,592,785 3,928,588 3,619,794 100%
——————————————————————————————————————————————————–

The remaining 88 percent of forms comprise less than 10 percent of
average biometrics submissions. The future population for biometrics
submission under the proposed rule does not yet exist, in context. To
estimate the future population, a method needs to be developed to
extrapolate functional conditions from the existing state of affairs.
To accomplish this, a biometrics collection rate (BCR), a formula
estimating the proportion of biometric submissions out of the total
age-eligible population within a form type, is developed. The BCR
formula is motivated below (Formula 1):
[GRAPHIC] [TIFF OMITTED] TP14NO19.000

Where BCR represents the Biometrics Collection Rate for a specific
form type, BI represents “intensity,” the average number of aliens
who currently submit biometrics by that form type in a fiscal year, and
P represents the volume of age-eligible benefit requests associated
with a form type by fiscal year. The calculations for the BCR for PREV-
9 are shown in Table 16. The average biometrics submissions are
repeated from Table 15 as the five-year average, and the average age
eligible population is also the five-year average. The results in Table
16 call for explanation.

Table 16–Biometrics Collection Rate by Form Grouping
[FY 2013-FY 2017] ——————————————————— Average age
Average eligible
biometrics filing BCR
submissions population
——————————————————— PREV-9 set:
I-765………………………………………………. I-131………………………………………………. N-400………………………………………………. I-90……………………………………………….. I-485………………………………………………. I-821D……………………………………………… I-589………………………………………………. I-751………………………………………………. I-601A……………………………………………… Two added forms:
I-918………………………………………………. I-914………………………………………………. Raw BCR for regrouped set………………………………… ………….. ——————————————————— 212;—————————————————-
212;—————————————————-
538,187 1,892,366 0.284
87,838 409,699 0.214
860,877 839,601 1.025
727,836 703,707 0.985
501,815 612,148 0.820
209,004 370,838 0.564
184,212 127,499 1.445
121,333 164,441 0.738
44,560 45,633 0.976
43,235 52,805 .819
1,907 2004 .952
………….. .8363
212;—————————————————-

[[Page 62412]]

The BCR for different form types varies due to the eligibility
categories and age characteristics of the filers and dependents. For
the Forms N-400 and I-589, the BCR is higher than unity. The reason is
that biometrics are currently routinely collected on all principal
applicants for these forms as well as derivative family members who
generally submit biometrics alongside the principal applicant. Two
forms, the I-131 and I-765, have low BCRs, even though biometrics are
routinely collected for these forms. But these BCRs are
“artificially” low because of concurrent filings; in many cases
biometrics are submitted via a concurrent form. As has been stated
earlier, the goal is to broadly collect biometrics from (c)(8) I-765
filers, but there will be exemptions and waivers (that have nothing to
do with the proposed rule).4 Hence, a proxy for BCR estimation
should be less than unity, but be positive and relatively high, and
while some analyst subjectivity is involved in our methodology, given
the unknowns, it is a rational approach. The BCRs for the four forms in
PREV-9 not discounted immediately above due to “artificially” high/
low BCRs are assessed to be reasonable and have a good deal of range,
from .564 to .985. Since it is desirable to have as many relevant forms
as possible in the proxy collection, we examined the BCRs for the
remaining [specific] forms and proceeded to add two, which are the only
forms external to PREV-9 that have high BCRs: Form I-914, Application
for T Nonimmigrant Status, and Form I-918, Petition for U Nonimmigrant
Status. The respective BCRs for these two additional forms, in order,
are .952 and .819, as is shown in Table 15. Recalibrating, this
rebranded group of 7 forms represent just 9 percent of the form
captures under CPMS (including the non-specific types) but nearly half
(46 percent) of average biometrics submissions.
—————————————————————————

4 Waivers are limited and would apply when there the
applicant is unable to provide fingerprints because of a medical
condition.
—————————————————————————

For the seven proper forms, we obtain the unweighted average BCR of
83.63 percent. We do not have a priori information on which specific
forms (or a subgroup of them) would have a BCR closest to the not yet
existing, in context, rule population. Similarly, there is no
“target” or desired BCR that we seek to impugn to this population
under the proposed rule. Hence, we use the raw average as opposed to a
weighted one, because the former weights each BCR in the group equally.
Scaling the adjusted population of 230,352 baseline biometrics by .8363
yields a projected biometrics submitting population (BSP) of 192,643.
Before estimating the costs of the biometrics requirement, another
proxy metric is needed, and hence another formula is required. Not all
of the biometrics submissions will involve the $85 biometric services
fee, as there will be applicable exemptions and waivers (that have
nothing to do with the proposed rule). To estimate the fee paying
population, DHS uses the total volume of biometric services fee
payments and the overall volume of biometric submissions to derive a
biometrics fee ratio (BFR), a formula identifying the portion of aliens
who pay the $85 biometric services fee out of the total population of
those submitting biometrics who may be required to pay the fee (e.g.
excluding I-589 applicants because they are not required to pay the
corresponding biometrics fee).
The formula for the BFR calculation is provided below (Formula 2):
[GRAPHIC] [TIFF OMITTED] TP14NO19.001

Where BFR represents the Biometrics Fee Ratio, F is the estimated
number of aliens who pay the biometric services fee in a fiscal year
and BI represents the number of biometrics submissions in a given
fiscal year, which was initialized above in the BCR setup. The fee-
paying volume for biometrics services is available from FY 2015 to FY
2017 only. The BFR is calculated by comparing the biometric fee paying
volumes to total biometrics submissions. In FY 2017, for example, a BFR
of 0.77 results by dividing a volume of 2.80 million biometric services
fee payments by a total of 3.62 million biometrics submissions.5
Stated somewhat differently, for every known non-exempt benefit request
with a biometrics submission, DHS estimates that about 77 percent of
aliens pay the biometric services fee while the remaining 23 percent of
aliens receive a fee exemption, a biometric services fee waiver, or
fall outside of the current age restrictions for submitting the $85
biometric services fee. Table 17 provides the BFR calculations for each
fiscal year, including the total and three-year average. The
generalized BFR that obtains is .755, which is weighted for the volume
size each year, since it is derived from the total that will be used
for subsequent calculations.6
—————————————————————————

5 Calculation: 2,801,648 fee-paying volume for FY 2017/
(3,928,588 total biometrics collection volume for FY 2017–304,308
Form I-589 biometrics collection volume for FY 2017) = 0.77. The
Form I-589 is excluded in the BFR calculations because there is no
fee associated with this form.
6 Calculation: 2,771,279 average Fee-Paying Volume/3,672,003
average biometric collection volume exclusive of Form I-589
biometric submissions = 0.75 (rounded).

Table 17–Biometric Fee Ratio, All Forms
[FY 2015-FY 2017] —————————————————————————————————————-
Biometric
Fee-paying submissions Biometrics fee
Fiscal year volume (excludes Form rate (BFR)
I-589)
—————————————————————————————————————-
FY 2015………………………………………………… 2,765,927 4,029,843 0.686
FY 2016………………………………………………… 2,746,261 3,361,885 0.817
FY 2017………………………………………………… 2,801,648 3,624,280 0.773
———————————————–

[[Page 62413]]

Total………………………………………………. 8,313,836 11,016,008 …………..
Average………………………………………………… 2,771,279 3,672,003 0.755
—————————————————————————————————————-

Applying the average BFR of .755 to the BSP biometrics population
of 192,643 yields an estimated 145,446 biometric services fee payments
(BFP) annually.
Having undertaken several steps to develop the appropriate BSP and
ensuing BFP, the costs germane to the biometrics requirement can be
developed. The submission of biometrics would require that aliens
travel to an ASC for the biometric services appointment.7 In past
rulemakings, DHS estimated that the average round-trip distance to an
ASC is 50 miles, and that the average travel time for the trip is 2.5
hours.8 The cost of travel also includes a mileage charge based on
the estimated 50 mile round trip at the 2019 General Services
Administration (GSA) rate of $0.58 per mile.9 Because an individual
would spend 1 hour and 10 minutes (1.17 hours) at an ASC to submit
biometrics, summing the ASC time and travel time yields 3.67 hours. At
this point we will also incorporate the added time burden of 15 minutes
(.25 hours), for additional Form I-765 questions and instructions, in
order to consolidate the costs. The total time is therefore 3.92 hours.
At the low and high wage bounds, the opportunity costs of time are
$47.24 and $142.96. The travel cost is $29, which is the per mileage
reimbursement rate of .58 multiplied by 50 mile travel distance.
Summing the time-related and travel costs generates a per person
biometrics submission cost of $76.24, at the low wage bound and $171.96
at the high wage bound.
—————————————————————————

7 DHS expects the majority of biometrics appointments to
occur in the United States at an ASC. However, in certain instances
aliens may submit biometrics at an overseas USCIS office or DOS
Embassy or consulate. However, because DHS does not currently have
data tracking the specific number of biometric appointments that
occur overseas, it uses the cost and travel time estimates for
submitting biometrics at an ASC as an approximate estimate for all
populations submitting biometrics in support of a benefit request.
8 See DHS Final Rule, Provisional Unlawful Presence Waivers
of Inadmissibility for Certain Immediate Relatives, 78 FR 535 (Jan.
3, 2013).
9 The General Services Administration mileage rate of $0.58,
effective January 1, 2019, available at: <a href=”https://www.gsa.gov/travel/plan-book/transportation-airfare-rates-pov-rates/privately-owned-vehicle-pov-mileage-reimbursement-rates”>https://www.gsa.gov/travel/plan-book/transportation-airfare-rates-pov-rates/privately-owned-vehicle-pov-mileage-reimbursement-rates</a>.
—————————————————————————

The total annual cost for the BSP would be $14,686,363 at the low
end and $33,127,424 at the high end. Multiplying the estimated BFP by
the $85 fee yields $12,362,891 annual biometric services fee costs. In
addition, DHS is proposing to require applicants with a pending initial
or renewal (c)(8) EAD application on the effective date of the final
rule to appear at an ASC for biometrics collection; but, DHS would not
collect the biometrics services fee from these aliens. Based on the
file tracking data as of April 1, 2019, DHS estimates that 14,451
pending EAD applications would be impacted. Multiplying the 14,451 by
the BCR provides a pending population estimate of 12,085 (rounded).
Since DHS would not collect the biometrics services fee from this
population, costs to applicants would only include time-related and
travel costs which would range from $921,389 to $2,078,200.0
—————————————————————————

0 As previously estimated, time-related and travel costs per
person result in $76.24 at a lower wage and $171.96 at a higher
wage. Therefore, the costs to applicants with pending applications
are estimated by multiplying $76.24 and $171.96 by the population
estimate of 12,085. DHS also notes that this population estimate is
based on current volumes and may vary depending on when this rule
becomes final.
—————————————————————————

Combining the costs to the BSP and fee payments for the BFP, and
the costs to the pending population, the costs of the biometrics
provision, at the low and high wage, in order, are estimated at
$27,970,644 and $47,568,515 in the first year and $27,049,255 and
$45,490,315, annually thereafter.
DHS is also proposing to eliminate the recommended approvals for
asylum, under which an asylum applicant can file an EAD request upon
initial favorable review by an asylum officer, prior to completion of
all background, security, and related checks. No individual having
already benefitted from the preferential treatment would be adversely
impacted. However, DHS must treat the earnings from recommended
approvals that would have occurred in the future as costs because the
proposed rule would eliminate these earnings. For the average 3,072
annual recommended approvals, not all applied for EADs, and not all of
those that applied were granted EADs. The data reveals that the share
of recommended approvals that eventually were approved for EADs was
62.8 percent, yielding 1,930 annual cases. The data was organized by
fiscal year and the requisite time interval was calculated by
subtracting the date of the associated asylum filing from the EAD
approval date. The results are presented in Table 18:

Table 18–Impact of Recommended Approvals
[Average calendar days from asylum filing to EAD approval, FY 2014-2018] —————————————————————————————————————-
No recommended Recommended
Fiscal year approval approval Day difference
—————————————————————————————————————-
2014………………………………………………… 330 246 83
2015………………………………………………… 317 262 56
2016………………………………………………… 305 264 41
2017………………………………………………… 310 268 42
2018………………………………………………… 234 193 40
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr

[[Page 62414]]

2014-2018 average…………………………………. …………… …………… 52
—————————————————————————————————————-

As Table 18 reveals, recommended approvals have benefited by having
EADs commence validity an average of 52 days sooner than others. This
52-day raw average day tally translates into a scaled impact of $3,579
per person at the low wage and (52-day impact x $68.83), and $10,833 at
the high wage (52-day impact x $208.32). Multiplying these costs by
1,930 annual cases yields a total labor income impact of $6,907,779 and
$20,907,387, in order. Similarly, the reduction in tax transfer
payments from employers and employees to the government could range
from $1,056,890 to $3,198,770 annually, depending on the wage and if
companies cannot find reasonable substitutes for the labor the asylum
applicant would have provided. The midpoint of the range for costs and
taxes are $13,907,387 and $2,127,830, in order.
DHS is also proposing to revise its regulations prescribing when
employment authorization terminates following the denial of an asylum
application. Under the baseline, DHS affirmative-asylum denials have
concomitant approved EADs terminated within 60 days after the adverse
asylum decision or on the date of the expiration of the EAD, whichever
is longer. This rule proposes that employment authorization would
instead be terminated effective on the date the affirmative asylum
application is denied. However, if DHS refers the case to DOJ-EOIR,
employment authorization will be available to the alien while in
removal proceedings. DHS analysis of the data reveals that 360 EADs
associated with a denied DHS Affirmative asylum application are
currently valid that could be terminated earlier than they otherwise
would, when the rule goes into effect. In addition to the costs of
potentially terminated EADs in the first year, the analysis reveals
about 215 EADs have been issued to concomitant asylum denials annually.
For the pool of 360 current EADs, the time remaining between the
present date of analysis (a proxy for the rule becoming effective) and
the time left on each EAD was calculated. As stated above, under the
baseline, the EADs linked to these DHS affirmative-asylum would end
within 60 days after the adverse asylum decision, or, on the date of
the expiration of the EAD, whichever is longer. For the cases with less
than 60 days left, calculating the precise cost of the rule to these
cases would require a complex analysis of the interaction between two
variables, the asylum decision date and the EAD validity period, as
well as the rule proxy date. To make the analysis tractable, we assign
these cases the 60-day period, noting that this assignment would likely
somewhat overstate the costs to these cases. After the recalibration to
60 days for the cases in with less than 60 days remaining, the average
time left on the EADs is 356 days. For the annual flow of 290 EADs, the
cost basis is the day-time difference between the adverse asylum
decision and the end of the EAD validity. For these cases the average
impact is 471 days.
The costs of the provision to end some EADs early can now be
tallied, since the appropriate impact metrics have been calculated. For
the existing EADs, the cost impact at the low wage bound is $24,503
each (356 days multiplied by 68.83), which is $8,821,253 in lost
earnings and generates $1,349,652 in tax transfers. The cost impact at
the upper wage bound is $74,162 each (356 days multiplied by $208.32),
which is $26,698,291 in lost earnings and generates $4,084,839 in tax
transfers. These specific costs and tax transfers would be incurred the
first year the rule could take effect.
For the annual flow of 215 annual EADs, the cost impact at the low
wage bound is $32,149 each (471 days multiplied by 68.83), which is
$6,970,070 in lost earnings and generates $1,066,421 in tax transfers.
For the annual flow of 215 EADs, the cost impact at the upper wage
bound is $98,119 each (471 days multiplied by 208.32), which is
$21,095,525 in lost earnings and generates $3,227,616 in tax transfers.
These costs and transfers would be incurred annually.
Adding up the costs and transfers for both the existing and future
EADs that could be impacted, for the first year the rule could take
effect, the costs would be $15,791,323 at the lower wage bound and
$47,793,816 at the upper wage bound. Similarly, taxes would range from
$2,416,072 to $7,312,454. The midpoint estimate for total costs and
taxes, in order, are $31,792,569, and $4,864,263.
Having estimated the costs and tax transfers for the provisions in
which costs and transfers could be quantified, we now tally them and
present the total quantified costs and transfers of the proposed rule.
There are essentially three quantified modules. First is the flow
volume of costs that will be incurred in each of ten years. As was
shown above, for the proposed biometrics requirement, costs were
allotted to the time-related opportunity costs associated with
submitting biometrics, the cost of travel, a form burden increase, and
the biometrics service fee payments. For the proposal to eliminate
recommended approvals, costs were developed as delayed earnings of
labor. For the proposal to end some EADs early, cost flows are
attributed to forgone future earnings (for DHS affirmative cases only).
For the 365-day EAD filing clock, costs were assigned to forgone or
delayed earnings as well. For this provision, a robust analysis was
offered for the 39,000 DHS affirmative asylum cases that could be
analyzed, and a slightly less robust analysis was presented for DHS
referrals to DOJ-EOIR, due to data constraints. Lastly, a maximum
estimate of forgone earnings was estimated for the residual population
under the 365-day filing clock. There is also a net cost-savings due to
the potential that some current filers may not need to file for an EAD
in the future.
Second, with the exception of the biometrics proposal, the other
provisions for which quantified cost flows are allocated, above, also
incur a reduction in tax transfer payments from employers and employees
to the government if companies cannot find reasonable substitutes for
the labor the asylum applicant would have provided. As a third module,
there could be a first year added cost and also a tax transfer
applicable to the existing pool of 360 EADs that could be ended early.
Table 19 presents the flow costs for the relevant provisions,
undiscounted and in order of the low (A) and high wage (B) bounds
relied upon. The cost figures

[[Page 62415]]

for the 365-day EAD wait include the net cost-savings.

Table 19(A)–Annual Flow Costs for Provisions of the Proposed Rule in Which Costs Could Be Monetized–Low Wage Bound
[Undiscounted, 2019-2028] ——————————————————————————————————————————————————–
Eliminate
Year 365 day EAD Biometrics End some EADs recommended Residual (365 day Annual total
filing early approvals EAD filing)
——————————————————————————————————————————————————–
1………………………………. $269,509,609 $27,970,644 $15,791,323 $6,907,779 $1,189,561,994 $1,509,741,349
2………………………………. 269,509,609 27,049,255 6,970,070 6,907,779 1,189,561,994 1,499,998,706
3………………………………. 269,509,609 27,049,255 6,970,070 6,907,779 1,189,561,994 1,499,998,706
4………………………………. 269,509,609 27,049,255 6,970,070 6,907,779 1,189,561,994 1,499,998,706
5………………………………. 269,509,609 27,049,255 6,970,070 6,907,779 1,189,561,994 1,499,998,706
6………………………………. 269,509,609 27,049,255 6,970,070 6,907,779 1,189,561,994 1,499,998,706
7………………………………. 269,509,609 27,049,255 6,970,070 6,907,779 1,189,561,994 1,499,998,706
8………………………………. 269,509,609 27,049,255 6,970,070 6,907,779 1,189,561,994 1,499,998,706
9………………………………. 269,509,609 27,049,255 6,970,070 6,907,779 1,189,561,994 1,499,998,706
10……………………………… 269,509,609 27,049,255 6,970,070 6,907,779 1,189,561,994 1,499,998,706
—————————————————————————————————————–
Undiscounted 10-year total…….. 2,695,096,086 271,413,939 78,521,952 69,077,788 11,895,619,940 15,009,729,703
——————————————————————————————————————————————————–

Table 19(B)–Annual Flow Costs for Provisions of the Proposed Rule in Which Costs Could Be Monetized–Upper Wage Bound
[Undiscounted, 2019-2028] ——————————————————————————————————————————————————–
Eliminate
Year 365 day EAD Biometrics End some EADs recommended Residual (365 day Annual total
filing early approvals EAD filing)
——————————————————————————————————————————————————–
1………………………………. $815,954,246 $47,568,515 $47,793,816 $20,906,995 $3,600,390,848 $4,532,614,420
2………………………………. 815,954,246 45,490,315 21,095,525 20,906,995 3,600,390,848 4,503,837,930
3………………………………. 815,954,246 45,490,315 21,095,525 20,906,995 3,600,390,848 4,503,837,930
4………………………………. 815,954,246 45,490,315 21,095,525 20,906,995 3,600,390,848 4,503,837,930
5………………………………. 815,954,246 45,490,315 21,095,525 20,906,995 3,600,390,848 4,503,837,930
6………………………………. 815,954,246 45,490,315 21,095,525 20,906,995 3,600,390,848 4,503,837,930
7………………………………. 815,954,246 45,490,315 21,095,525 20,906,995 3,600,390,848 4,503,837,930
8………………………………. 815,954,246 45,490,315 21,095,525 20,906,995 3,600,390,848 4,503,837,930
9………………………………. 815,954,246 45,490,315 21,095,525 20,906,995 3,600,390,848 4,503,837,930
10……………………………… 815,954,246 45,490,315 21,095,525 20,906,995 3,600,390,848 4,503,837,930
—————————————————————————————————————–
Undiscounted 10-year total…….. 8,159,542,463 456,981,350 237,653,539 209,069,952 36,003,908,480 45,067,155,790
——————————————————————————————————————————————————–

The data in Table 19 are utilized to attain the discounted costs of
the proposed rule. Since the first year of the rule’s effects will
include the additional costs applicable to ending some EADs early, the
annual effect is not constant across all ten years is not the same, and
therefore, the average annualized equivalence cost will be different
across interest rates. The total ten-year present values, in order of 3
and 7 percent rates of discount, are $12,804,752,094 and
$10,544,468,497. In the same order, the average annualized equivalence
costs are $1,501,107,575 and $1,501,295,092. At the upper wage bound,
the total ten-year present values, in order of 3 and 7 percent rates of
discount, are $38,446,589,427 and $31,659,966,864. In the same order,
the average annualized equivalence costs are $4,507,113,156 and
$4,507,667,019.
Table 20 reports the total quantified tax transfers for the
proposed rule, based on the provisions for which quantification is
possible.

Table 20–Annual Tax Transfers For Provisions Under Which Taxes Could Be
Estimated and Monetized
[Undiscounted] ————————————————————————
Provision Low wage bound Upper wage bound
————————————————————————
365 day EAD filing wait……….. $41,307,429 $125,020,538
Biometrics…………………… 0 0
End Some EADs early…………… 1,066,421 3,227,615
Eliminate Recommended Approvals… 1,056,890 3,198,770
Residual 365-day filing wait…… 182,002,985 550,859,800
Subtotal annual tax transfers….. 225,433,725 682,306,7243
Plus: First year added tax of 1,349,652 4,084,839
ending some EADs early………..
Equals: Total tax transfers in 226,783,377 686,391,562
first year…………………..
————————————————————————

Finally, this section concludes with Table 21, which collates the
monetized impacts of the rule, in terms of both costs (A) and taxes
(B), and provides the midrange of them.

[[Page 62416]]

Table 21(A)–Monetized Costs of the Proposed Rule
[Discounted, $ millions, 2019-2028] —————————————————————————————————————-
Range
Low wage Upper range midpoint
—————————————————————————————————————-
3 percent discount (ten-year PV)………………………….. $12,804.8 $38,446.6 $25,625.7
7 percent discount (ten-year PV)………………………….. 10,544.5 31,660.0 21,102.2
3 percent discount (average annual equivalence)…………….. 1,501.1 4,507.1 3,004.1
7 percent discount (average annual equivalence)…………….. 1,501.3 4,507.7 3,004.5
—————————————————————————————————————-

Table 21(B)–Monetized Tax Transfers of the Proposed Rule
[$ millions, 2019-2028] —————————————————————————————————————-
Range
Low wage Upper range midpoint
—————————————————————————————————————-
3 percent discount (ten-year)…………………………….. 1,924.3 5,824.2 3,874.2
7 percent discount (ten-year)…………………………….. 1,584.6 4,796.1 3,190.3
3 percent discount (average annual equivalence)…………….. 225.6 682.8 454.2
7 percent discount (average annual equivalence)…………….. 225.6 682.9 454.2
—————————————————————————————————————-

Module 3. Unquantified Costs and Transfers
There are several populations related to specific proposals that
would incur costs due to the proposed rule, but, given data
constraints, DHS is unable to measure the possible costs and transfer
payments in a quantitative fashion.
DHS proposes to exclude, with certain exceptions, aliens who
entered or attempted to enter the United States at a place and time
other than lawfully through a U.S. port of entry from eligibility for
(c)(8) employment authorization. The rule also proposes to exclude from
eligibility for (c)(8) employment authorization aliens who have been
convicted of any U.S. felony or any serious non-political crime outside
the United States, or who have been convicted of certain public safety
offenses in the United States. DHS is unable to estimate the population
that would be impacted by the provisions dealing with illegal entry and
criminality. If any person incumbent to these populations would be
delayed in or precluded from obtaining an EAD, the distributional
impacts in terms of earnings would apply, as would, potentially, tax
transfers.
DHS proposes to apply changes made by this rule to all initial and
renewal applications for employment authorization filed on or after the
effective date of the final rule, with limited exceptions. DHS would
apply two of the proposed ineligibility provisions–those relating to
certain criminal offenses and failure to file the asylum application
within one year of the alien’s last entry to the US–to initial and
renewal applications for employment authorization pending on the
effective date of the final rule. DHS estimates 14,451 potentially
affected pending applications. DHS estimates an annual renewal
population of 104,163. DHS cannot quantify how many of the 14,451
pending EAD filings or 104,163 annual renewals would be subject to the
criminal and one-year-filing provisions when the rule goes into effect
or how many would be precluded from obtaining an EAD. Lost compensation
for pending and renewal EAD applicants precluded from obtaining an EAD
would result in costs to businesses and/or distributional impacts in
the form of transfers, depending on if the business is able to find
replacement labor for the job the asylum applicant would have filled.
If businesses are unable to find replacement labor, it would both
result in a loss of business productivity and also in a reduction in
taxes transferred from asylum applicants and employers to Federal,
state and local governments.
DHS also proposes to deny (c)(8) EAD applications filed on or after
the effective date by aliens who have failed to file for asylum within
one year of their last arrival in the United States, as required by
law, unless and until an asylum officer or IJ determines that an
exception to the one-year filing bar does not apply. DHS makes about
8,472 such referrals to DOJ-EOIR each year (Table 12). For aliens who
are granted an exception to the bar, it is possible that they would
likely face deferred earnings and lost taxes along the lines we have
developed for the quantified costs, due to delays in filing subject to
the IJ decision. Others would likely not be granted an EAD and would
lose earnings altogether. DHS has no data that would enable estimation
of these effects as a result of the one-year filing bar provision.
Specifically, while DHS does have data on the filing bar referrals and
the associated I-765s, we do not have data on the outcome of these
filing bar referrals. EADs linked to defensive asylum cases could also
be impacted by the filing bar conditions proposed.
As discussed previously, DHS is also proposing to revise its
regulations prescribing when employment authorization terminates
following the denial of an asylum application. In the above quantified
analysis DHS estimates the cost of these changes for asylum cases
denied by an asylum officer. DHS discusses here the impacts for asylum
cases denied by an IJ. Under the baseline, when an IJ denies an asylum
application, the EAD terminates on the date the EAD expires, unless the
asylum applicant seeks administrative or judicial review. This rule
proposes that for cases USCIS refers to DOJ-EOIR and cases defensively
filed with DOJ-EOIR, employment authorization would continue for 30
days following the date that the IJ denies the asylum application to
account for a possible appeal of the denial to the BIA. If the alien
files a timely appeal, employment authorization would continue, and the
alien would be able to file a renewal EAD application. As shown in
Table 9, from 2014-2018 DOJ-EOIR denied an average of 14,820 asylum
applications annually. However, the data available to DHS does not map
DOJ-EOIR case dispositions to DHS employment authorizations, and thus
we cannot estimate how many denied or dismissed asylum claims by an IJ
or BIA are connected to authorized EADs, either on an annualized flow
or current pool basis. For DHS affirmative asylum, the populations (215
and 360, in order) were small. The numbers are likely to be higher for
DOJ-EOIR, since DHS makes

[[Page 62417]]

so many referrals to them, and, since DOJ-EOIR solely handles defensive
cases. Aliens with an EAD who are denied asylum would eventually be out
of the labor force even without this rule. Therefore, the cost for an
employer to replace the employee (turnover cost) is not a cost of this
rule. However, this rule would impact the timing of when such workers
would be separated, which could vary. This rule would result in
employers incurring such turnover costs earlier than without this rule.
This proposed rule seeks to clarify that aliens with a positive
credible fear finding are not eligible to seek immediate work
authorization under 8 CFR 274a.12(c)(11), although, historically USCIS
has granted many of these requests, an average of approximately 13,000
annually. Such aliens would still be eligible to apply for a (c)(8)
employment authorization to become employment authorized subject to the
eligibility changes proposed in this rule, including the proposed 365-
day waiting period. Accordingly, applicants that apply for an EAD from
the current (c)(11) category may experience a delay in earnings. It is
possible that some of the applicants under this scenario would have
their asylum decision within 365 days and thus would potentially not
file for an EAD. It is recalled that an adjustment was made for this
possibility in the development of the biometrics requirement provision
costs. It is also possible that some may not file as transfers for
other reasons. As a result, the actual affected population would most
likely be below 13,000. USCIS is unable to develop a cost of lost or
delayed earnings for this group because DHS does not have the related
asylum information, so DHS does not have the data necessary to
correctly segment the costs.
In some cases, the changes in protocol could result in applicant-
caused delays in receiving an EAD because the purpose of the rule is to
generate disincentives to applicants to cause any delays in the
adjudication of their asylum application. Any such delays in earnings
could generate economic hardship to aliens in terms of delayed
earnings. The proposed rule would amend existing language to clarify
that an applicant’s failure to appear to receive and acknowledge
receipt of the decision following an interview and a request for an
extension to submit additional evidence will be considered applicant-
caused delays for purposes of eligibility for employment authorization.
DHS further proposes that any documentary evidence submitted fewer than
14 calendar days before the asylum interview (with allowance for a
brief extension to submit additional evidence as a matter of
discretion) may result in an applicant-caused delay if it delays the
adjudication of the asylum application. The purpose of this provision
is to improve administrative efficiency and aid in the meaningful
examination and exploration of evidence in preparation for and during
the interview. The purpose of the rule is to generate disincentives to
applicants to cause any delays in the adjudication of their asylum
application. While DHS has no way of predicting how the disincentives
might take effect, in some cases, the changes in protocol could result
in applicant-caused delays in receiving an EAD, and therefore could
impose costs. DHS welcomes public input on this topic.
In addition to the major provisions being proposed, there are
numerous technical changes, clarifications to existing language, and
amendments to existing language. DHS seeks to clarify how an asylum
applicant’s failure to appear for an asylum interview or biometric
services appointment will affect his or her eligibility for asylum or
employment authorization and proposes a new timeframe and standard for
rescheduling an asylum interview for the asylum application. In
addition, DHS clarifies that USCIS is not obligated to send any notice
to the applicant about his or her failure to appear at a scheduled
biometric services appointment or an asylum interview as a prerequisite
to denying the asylum application or referring it to an IJ. These
amendments are intended to facilitate more timely and efficient case
processing when applicants fail to appear for essential appointments.
Finally, the amendments replace references to fingerprint processing
and fingerprint appointment with the presently employed “biometric
services appointment.”
DHS also proposes to remove the language providing that an
application for asylum will automatically be deemed “complete” if
USCIS fails to return the incomplete application to the applicant
within a 30-day period. There is no impact from this change because
USCIS is already returning incomplete applications, and this rule would
remove outdated regulatory text that no longer applies.
The rule also codifies certain protocols related to the length of
EAD validity and DHS authorities in the asylum process. These
amendments and technical codifications outlined above and discussed in
more detail in the preamble could impact the specific protocol, timing,
and variations in which applicants interact with DHS over the asylum
and concomitant EAD process.
b. Benefits
The benefits potentially realized by the proposed rule are
qualitative. It is not possible to monetize the benefits. Aliens with
bona fide asylum claims will be prioritized because the incentives for
aliens to file frivolous, fraudulent, or otherwise non-meritorious
asylum applications intended primarily to obtain employment
authorization will be reduced. A streamlined system for employment
authorizations for asylum seekers would reduce fraud and improve
overall integrity and operational efficiency, thereby benefiting the
U.S. Government and the public.
The proposed changes will remove incentives for aliens to enter the
United States illegally for economic reasons and allow DHS to process
bona fide asylum seekers who present themselves at the U.S. ports of
entry in an expedited manner. DHS also believes these administrative
reforms will encourage aliens to follow the lawful process to immigrate
to the United States, which will reduce injuries and deaths that occur
during dangerous illegal entries, and reduce expenditures by government
agencies that are charged with enforcing the immigration laws of the
United States. These impacts stand to provide qualitative benefits to
asylum seekers, the communities in which they reside and work, the U.S.
Government, and society at large.
The proposed rule is also beneficial in the context that providing
employment authorization to inadmissible and removable undermines the
removal scheme created by Congress and incentivizes such aliens to come
to and remain in the United States.1 Doing so also undermines the
Administration’s goals of strengthening protections for U.S. workers in
the labor market.2

[[Page 62418]]

Several employment-based visa programs require U.S. employers to test
the labor market, comply with recruiting standards, agree to pay a
certain wage level, and agree to comply with standards for working
conditions before they can hire an alien to fill the position. These
protections do not exist in the (c)(8) EAD program.
—————————————————————————

1 In a few limited circumstances, Congress has authorized
the Secretary to grant employment authorization, as a matter of
discretion, to aliens who are inadmissible or deportable and even
when they have a final order of removal from the United States. See,
e.g., INA sec. 236(a)(3), 8 U.S.C. 1226(a)(3) (discretionary
employment authorization for inadmissible or removable aliens with
pending removal proceedings); INA sec. 241(a)(7), 8 U.S.C.
1231(a)(7) (discretionary employment authorization for certain
aliens with final orders of removal).
2 Aliens who file adjustment of status applications even if
they do not ultimately qualify for adjustment of status to permanent
residence and aliens who are temporarily placed in deferred action,
are allowed to apply for EADs. If DHS approves the application for
employment authorization, these aliens receive “open market”
EADs–meaning that they may accept employment in any field and may
be hired by any U.S. employer without the U.S. employer having to
demonstrate that there were no available U.S. workers or guarantee
that that it will pay the prevailing wage or maintain certain work
conditions. As a result, such aliens are more likely to directly
compete with U.S. workers for employment.
—————————————————————————

The proposed biometrics requirement would provide a benefit to the
U.S. Government by enabling DHS to know with greater certainty the
identity of aliens seeking (c)(8) EADs and more easily vet those aliens
for benefit eligibility. This would also provide DHS with the ability
to limit identity fraud because biometrics are unique physical
characteristics that are difficult to falsify and do not change over
time.
c. Impact to Labor Force and Taxes
The proposed rule, when finalized, is not expected to have a
significant impact on states or the national labor force. The national
civilian labor force is 163,922,000, for which the proposed rule’s
maximum population of 304,562 (first year) and 289,751 (each year
after) would represent just .19, and .18 percent of the labor force, in
order.3 It is possible that if all or a large share of the relevant
EAD holders were concentrated in a specific metropolitan statistical
area, the population relevant to the proposed rule could represent a
larger share of the labor force (locally), but DHS does not expect
impacts to the labor market.
—————————————————————————

3 Relevant calculations: 304,888/163,922,000 = .00186, which
is rounded and multiplied by 100 to equal .19 percent, and 289,751/
163,922,000 = .00177, which is rounded and multiplied by 100 to
equal .18 percent. The labor force figure represents the civilian
labor force, seasonally adjusted, for August 2019, and is found in
“Table A-1. Employment status of the civilian population by sex and
age,” Economic News Release at: <a href=”https://www.bls.gov/news.release/archives/empsit_09062019.htm”>https://www.bls.gov/news.release/archives/empsit_09062019.htm</a>.
—————————————————————————

The provisions would generate costs in terms of distributional
impacts in the form of deferred and lost compensation. Additionally,
some of the lost tax transfers could be incurred by states. The total
reduction in employment tax transfers from employers and employees to
the Federal Government could range from $225.6 million to $682.9
million annually (annualized at 7%). There could also be a reduction in
income tax transfers from employers and employees that could impact
individual states and localities.
In addition, some states, municipalities, or other geographic
entities could have budgets that assist persons awaiting asylum. Of the
period in which asylum applicants wait for an EAD is extended, there
could be an impact to those entities, and possibly, to family, social,
or other assistance networks.

B. Regulatory Flexibility Act (RFA)

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 businesses, small
governmental jurisdictions, and small organizations during the
development of their rules. The term “small entities” comprises small
businesses, not-for-profit organizations that are independently owned
and operated and are not dominant in their fields, or governmental
jurisdictions with populations of less than 50,000.4
—————————————————————————

4 A small business is defined as any independently owned and
operated business not dominant in its field that qualifies as a
small business per the Small Business Act, 15 U.S.C. 632.
—————————————————————————

This proposed rule would make significant changes to the process by
which aliens seeking asylum in the United States can apply for EADs
while their asylum claims are pending either with DHS or DOJ-EOIR. DHS
has estimated that rule would cover a maximum quantified population of
about 305,000 aliens, with smaller sub-populations applicable to
specific, individual provisions. We assess that this rule’s proposed
changes do not fall under the RFA because they directly regulate
individuals who are not, for purposes of the RFA, within the definition
of small entities established by 5 U.S.C. 601(6).
As previously explained, several of the provisions being proposed
may result in deferred or forgone labor earnings compensation for
asylum applicants. In addition, some aliens would not be able to obtain
an EAD in the future that otherwise could currently. However, these
provisions do not directly regulate employers.
While the RFA does not require agencies to examine the impact of
indirect costs to small entities, 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 but requests comments from the public
that would assist in understanding costs not described herein.
(1) A Description of the Reasons Why the Action by the Agency Is Being
Considered
The rule is being proposed in order to reform the asylum
application and associated employment authorization application process
in order to prioritize bona fide claims and reduce frivolous and non-
meritorious asylum filings. The proposed rule is necessary because it
has been a long time since significant statutory changes have been made
to the asylum provisions that would effectively address the current
aspects of the immigration laws that incentivize illegal immigration
and frivolous asylum filings. Furthermore, the rule could address
several of the “pull” factors that encourage aliens to enter the
United States without being inspected and admitted or paroled and to
file non-meritorious asylum claims to obtain employment authorization
or other non-asylum based forms of relief from removal. These “pull”
factors have led, in part, to a significant increase in illegal
immigration and in asylum filings, which has generated a severe backlog
of cases and an overwhelming volume of non-meritorious cases.
(2) A Succinct Statement of the Objectives of, and Legal Basis for, the
Proposed Rule
The objective of the proposed rule is to disassociate employment
authorization from asylum applications and minimize the abuse of the
asylum process by inadmissible or removable aliens who are not eligible
for asylum but seek to prolong their stay in the United States for
economic reasons. The proposed changes will remove incentives for
aliens to enter the United States illegally for economic reasons and
allow DHS to process bona fide asylum seekers who present themselves at
U.S. ports of entry in an expedited manner. DHS also believes these
administrative reforms will encourage aliens to follow the lawful
process to immigrate to the United States.
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

[[Page 62419]]

immigration and nationality laws and to establish such regulations as
he deems necessary for carrying out such authority.
(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 change aspects of the asylum
process related to how and when asylum applicants can apply for and
obtain EADs, when asylum applicants’ employment authorization is
terminated, as well as their eligibility for EADs. The rule would delay
asylum applicants’ employment authorization, remove certain aliens’
eligibility for employment, and terminate certain aliens’ employment
eligibility earlier than without this rule. This rule does not directly
regulate small entities and thus the number of small entities to which
the proposed rule would directly regulate is zero. However, this rule
would indirectly impact small entities that may employ affected EAD
holders. DHS does not have information on where affected aliens obtain
employment and thus is unable to estimate the number of small entities
that may be indirectly impacted by this rule.
(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 proposed 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. DHS is the sole
administrator of employment authorization applications. DOJ may issue
conforming changes to its regulations at a later date. DHS is also in
the process of drafting proposed rulemaking broadening biometrics
collection. Although the Form I-765 is involved in this separate broad
biometrics collection proposal, the present proposed rule focuses
specifically on the I-765(c)(8) eligibility category. There could be
some overlap between the two proposed rules, but such overlap is not
expected to create new costs or burdens.
(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, also
known as the “Congressional Review Act,” as enacted in section 251 of
the Small Business Regulatory Enforcement Fairness Act of 1996, Public
Law 104-121, 110 Stat. 847, 868 et seq. Accordingly, 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 (UMRA)

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.
Because this proposed rulemaking does not impose any Federal
mandates on State, local, or tribal governments, in the aggregate, or
the private sector, this rulemaking does not contain such a written
statement.

E. Executive Order 13132 (Federalism)

This rule will not have substantial direct effects on the States,
on the relationship between the National Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. DHS does not expect that this proposed rule would
impose substantial direct compliance costs on State and local
governments or preempt State law. Therefore, in accordance with section
6 of Executive Order 13132, it is determined that this 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.

G. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)

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.

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 will delay the ability for initial
applicants to work and limiting or prohibit some from working based on
criminal and immigration history, which will decrease disposable income
of those applicants with families. A portion of this lost compensation
might be transferred from asylum applicants to others that are
currently in the U.S. labor force, or, eligible to work lawfully,
possibly in the form of additional work hours or the direct and
indirect added costs associated with overtime pay. DHS does not know
how many applicants contribute to family disposable income. The total
lost compensation to the pool of potential asylum applicants could
range from about $319 million to $930 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.

I. National Environmental Policy Act (NEPA)

DHS analyzes actions to determine whether NEPA applies to them and
if so what degree of analysis is required. DHS Directive (Dir) 023-01
Rev. 01 and Instruction (Inst.) 023-01-001 rev. 01 establish the
procedures that DHS and

[[Page 62420]]

its components use to comply with NEPA and the Council on Environmental
Quality (CEQ) regulations for implementing NEPA, 40 CFR parts 1500
through 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.
DHS Instruction 023-01-001 Rev. 01 establishes such Categorical
Exclusions that DHS has found to have no such effect. Inst. 023-01-001
Rev. 01 Appendix A Table 1. For an action to be categorically excluded,
DHS 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. Inst.
023-01-001 Rev. 01 section V.B(1)-(3). This proposed rule would amend
the administrative procedure for filing an affirmative asylum
application in the United States, and strengthen eligibility
requirements for employment authorization based on a pending asylum
application.
DHS analyzed this action and has concluded that NEPA does not apply
due to the excessively speculative nature of any effort to conduct an
impact analysis. Nevertheless, if NEPA did apply to this action, the
action clearly would come within our categorical exclusion A.3(d) as
set forth in DHS Inst. 023-01-001 Rev. 01, Appendix A, Table 1.
This rule is not part of a larger action and presents no
extraordinary circumstances creating the potential for significant
environmental effects. Therefore, if NEPA were determined to apply,
this rule would be categorically excluded from further NEPA review.

J. 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.

K. Executive Order 12630 (Governmental Actions and Interference With
Constitutionally Protected Property Rights)

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.

L. 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.

M. 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.

N. Paperwork Reduction Act (PRA)

Under the Paperwork Reduction Act of 1995, Public Law 104-13,
agencies are required to submit to OMB, for review and approval, any
reporting requirements inherent in a rule. Table 19 shows a summary of
the forms that are part of this rulemaking.

Table 19–Summary of Impacts to USCIS Forms
—————————————————————————————————————-
Form Form name New or updated form General purpose of form
—————————————————————————————————————-
I-589………………………….. Application for Asylum Update–revises and This form is used by
and for Withholding of adds instructions for applicants to apply
Removal. employment for asylum or
authorization while withholding of removal
asylum application is under the Act or the
pending. Convention Against
Torture (CAT).
I-765………………………….. Application for Update–revises and This form is used by
Employment adds instructions and applicants to request
Authorization. questions for aliens employment
seeking employment authorization from
authorization under USCIS.
the (c)(8) eligibility
category.
—————————————————————————————————————-

USCIS Form I-589

[[Page 62421]]

2. Evaluate the accuracy of the agency’s estimate of the burden of
the collection of information, including the validity of the
methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to
be collected; and
4. Minimize the burden of the collection of information on those
who are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of responses.

Overview of Information Collection

(1) Type of Information Collection: Revision of a Currently
Approved Collection.
(2) Title of the Form/Collection: Application for Asylum and for
Withholding of Removal
(3) Agency form number, if any, and the applicable component of the
DHS sponsoring the collection: Form I-589; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals and households. The data
collected on this form will be used by USCIS to determine if the alien
is eligible for asylum or withholding of removal.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: The estimated
total number of respondents for the information collection Form I-589
is 114,000 and the estimated hour burden per response is 12 hours; the
estimated total number of respondents for the information collection
Biometrics is 110,000 and the estimated hour burden per response is
1.17 hours.
(6) An estimate of the total public burden (in hours) associated
with the collection: The total estimated annual hour burden associated
with this collection is 1,496,700 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this information collection is $46,968,000.

USCIS Form I-765

DHS invites comment on the impact to the proposed collection of
information. In accordance with the PRA, the information collection
notice is published in the Federal Register to obtain comments
regarding the proposed edits to the information collection instrument.
Comments are encouraged and will be accepted for 60 days from the
publication date of the proposed rule. All submissions received must
include the OMB Control Number 1615-0040 in the body of the letter and
the agency name. To avoid duplicate submissions, please use only one of
the methods under the ADDRESSES and I. Public Participation section of
this rule to submit comments. Comments on this information collection
should address one or more of the following four points:
5. Evaluate whether the collection of the information is necessary
for the proper performance of the functions of the agency, including
whether the information will have practical utility;
6. Evaluate the accuracy of the agency’s estimate of the burden of
the collection of information, including the validity of the
methodology and assumptions used;
7. Enhance the quality, utility, and clarity of the information to
be collected; and
8. Minimize the burden of the collection of information on those
who are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of responses.

Overview of Information Collection

(1) Type of Information Collection: Revision of a currently
approved collection.
(2) Title of the Form/Collection: Application for Employment
Authorization
(3) Agency form number, if any, and the applicable component of the
DHS sponsoring the collection: Form I-765; USCIS
(4) Affected public who will be asked or required to respond, as
well as a brief abstract:
Primary: Individuals and households. USCIS requires an alien
seeking employment authorization to file the Form I-765. The data
collected on this form will be used by USCIS to determine if the
individual seeking employment authorization qualifies under the
categories of aliens who may apply for employment authorization under 8
CFR 274a.12.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: The estimated
total number of respondents for the information collection Form I-765
is 2,036,026 and the estimated hour burden per response is 4.75 hours;
the estimated total number of respondents for the information
collection biometrics is 346,589 and the estimated hour burden per
response is 1.17 hours; the estimated total number of respondents for
the information collection Form I-765WS is 41,912 and the estimated
hour burden per response is .50 hours; the estimated total number of
respondents for the information collection passport-style photographs
is 2,036,026 and the estimated hour burden per response is .50 hours.
(6) An estimate of the total public burden (in hours) associated
with the collection: The total estimated annual hour burden associated
with this collection is 11,115,602 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this information collection is $669,852,554.

List of Subjects

8 CFR Part 208

Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.

8 CFR Part 274a

Administrative practice and procedure, Aliens, Employment,
Penalties, Reporting and recordkeeping requirements.

Accordingly, DHS proposes to amend parts 208 and 274a of chapter I,
subchapter B, 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.

0
2. Amend Sec. 208.3 by revising paragraph (c)(3) to read as follows:

Sec. 208.3 Form of application.

* * * * *
(c) * * *
(3) An asylum application must be properly filed in accordance with
8 CFR part 103 and the filing instructions. Receipt of a properly filed
asylum application will commence the 365-day period after which the
applicant may file an application for employment authorization in
accordance with Sec. 208.7 and 8 CFR 274a.12 and 274a.13.
* * * * *
0
3. Amend Sec. 208.4 by revising paragraph (c) to read as follows:

[[Page 62422]]

Sec. 208.4 Filing the application.

* * * * *
(c) Amending an application after filing. Upon the request of the
alien, and as a matter of discretion, the asylum officer or Immigration
Judge with jurisdiction may permit an asylum applicant to amend or
supplement the application. Any delay in adjudication or in proceedings
caused by a request to amend or supplement the application will be
treated as a delay caused by the applicant for purposes of Sec. 208.7
and 8 CFR 274a.12(c)(8).
0
4. Revise Sec. 208.7 to read as follows:

Sec. 208.7 Employment authorization.

(a) Application and decision. (1)(i) In General. Subject to the
restrictions contained in sections 208(d) and 236(a) of the Act, and
except as otherwise provided in paragraphs (b) and (c) of this section,
an applicant for asylum who is in the United States may apply for
employment authorization pursuant to 8 CFR 274a.12(c)(8) and
274a.13(a)(2) of this chapter. The applicant must request employment
authorization on the form and in the manner prescribed by USCIS and
according to the form instructions, and must submit biometrics at a
scheduled biometrics services appointment. USCIS has exclusive
jurisdiction over all applications for employment authorization and
employment authorization documentation based on a pending application
for asylum under 8 CFR 274a.12(c)(8), regardless of whether the asylum
application is pending with USCIS or the Executive Office for
Immigration Review. Employment authorization is not permitted during
any period of judicial review of the asylum application, but may be
requested if a Federal court remands the case to the Board of
Immigration Appeals. USCIS may grant initial employment authorization
under 8 CFR 274a.12(c)(8) for a period that USCIS determines is
appropriate at its discretion, not to exceed increments of two years.
(ii) Period for filing. An applicant for asylum cannot apply for
initial employment authorization earlier than 365 calendar days after
the date USCIS or the immigration court receives the asylum application
in accordance with 8 CFR part 103 or 8 CFR 1003.31, respectively, and
the filing instructions on the application. If an asylum application is
denied by USCIS before a decision on an initial or renewal application
for employment authorization, the application for employment
authorization will be denied.
(iii) Asylum applicants who are ineligible for employment
authorization. An applicant for asylum is not eligible for employment
authorization if:
(A) The applicant was convicted in the United States or abroad of
any aggravated felony as described in section 101(a)(43) of the Act;
(B) The applicant was convicted in the United States of any felony
as defined in 18 U.S.C. 3156(a)(3);
(C) The applicant was convicted of any serious non-political crime
outside the United States. USCIS will consider, on a case-by-case
basis, whether aliens who have been convicted of any non-political
foreign criminal offense, or have unresolved arrests or pending charges
for any non-political foreign criminal offenses, warrant a favorable
exercise of discretion for a grant of employment authorization;
(D) The applicant was convicted in the United States of a public
safety offense involving:
(1) Domestic violence, domestic assault, or any other domestic or
spousal battery-type offense unless the applicant has been subjected to
extreme cruelty, is not and was not the primary perpetrator of the
violence in the relationship, and is not otherwise ineligible. If an
applicant has unresolved domestic arrests or pending charges, USCIS
will decide at its discretion if it will grant the applicant employment
authorization, based on the totality of the circumstances.
(2) Child abuse, child neglect, or any other offense against a
child, regardless of an element of sexual or inappropriate touching. If
an applicant has unresolved domestic arrests or pending charges, USCIS
will decide at its discretion if it will grant the applicant employment
authorization, based on the totality of the circumstances.
(3) Controlled substances, including possession, possession with
intent to distribute, or delivery. If an applicant has unresolved
domestic arrests or pending charges, USCIS will decide at its
discretion if it will grant the applicant employment authorization,
based on the totality of the circumstances.
(4) Driving or operating a motor vehicle under the influence of
alcohol or drugs, regardless of how the arresting, charging, or
convicting jurisdiction classifies the offense. If an applicant has
unresolved domestic arrests or pending charges, USCIS will decide at
its discretion if it will grant the applicant employment authorization,
based on the totality of the circumstances.
(E) An asylum officer or an Immigration Judge has denied the
applicant’s asylum application within the 365-day period or before the
adjudication of the initial request for employment authorization;
(F) The applicant filed his or her asylum application beyond the
one-year filing deadline, unless and until the asylum officer or
Immigration Judge determines that the applicant meets an exception for
late filing as provided in section 208(a)(2)(D) of the Act and 8 CFR
208.4 and 1208.4, or unless the applicant was an unaccompanied alien
child on the date the asylum application was first filed;
(G) The applicant is an alien who entered or attempted to enter the
United States at a place and time other than lawfully through a U.S.
port of entry, unless the alien demonstrates that he or she:
(1) Presented himself or herself without delay to the Secretary of
Homeland Security or his or her delegate;
(2) Indicated to the Secretary of Homeland Security or his or her
delegate an intention to apply for asylum or expresses a fear of
persecution or torture; and
(3) Has good cause for the illegal entry or attempted entry,
provided such good cause does not include the evasion of U.S.
immigration officers, convenience, or for the purpose of circumvention
of the orderly processing of asylum seekers at a U.S. port of entry.
(iv) Applicability. Paragraphs (a)(1)(iii)(A) through (D) of this
section apply to applications that were filed prior to and remain
pending on [effective date of final rule].
(v) Delay. Any delay requested or caused by the applicant on his or
her asylum application that is still outstanding or has not been
remedied when USCIS adjudicates the application for employment
authorization under 8 CFR 274a.12(c)(8) will result in a denial of such
application. Examples of applicant-caused delays include, but are not
limited to the list below:
(A) A request to amend or supplement an asylum application that
causes a delay in its adjudication or in proceedings as permitted in 8
CFR 208.4(c);
(B) Failure to appear to receive and acknowledge receipt of the
decision as specified in 8 CFR 208.9(d);
(C) A request for extension to submit additional evidence fewer
than 14-days prior to the interview date as permitted by 8 CFR
208.9(e);
(D) Failure to appear for an asylum interview, unless excused by
USCIS as described in 8 CFR 208.10(b)(1) for the failure to appear;

[[Page 62423]]

(E) Failure to appear for scheduled biometrics collection on the
asylum application;
(F) A request to reschedule an interview for a later date;
(G) A request to transfer a case to a new asylum office or
interview location, including when the transfer is based on a new
address;
(H) A request to provide additional evidence for an interview;
(I) Failure to provide a competent interpreter at an interview; and
(J) Failure to comply with any other request needed to determine
asylum eligibility.
(b) Renewal and termination–(1) Renewals. USCIS may renew
employment authorization under 8 CFR 274a.12(c)(8) in increments
determined by USCIS in its discretion, but not to exceed increments of
two years. Employment authorization is not permitted during any period
of judicial review, but may be requested if a Federal court remands the
case to the Board of Immigration Appeals. For employment authorization
to be renewed under this section, the alien must request employment
authorization on the form and in the manner prescribed by USCIS and
according to the form instructions. USCIS will require that an alien
establish that he or she has continued to pursue an asylum application
before USCIS, an Immigration Judge, or the Board of Immigration Appeals
and that he or she continues to meet the eligibility criteria for
employment authorization set forth in 8 CFR 208.7(a). For purposes of
renewal of employment authorization, pursuit of an asylum application
before an Immigration Judge or the Board of Immigration Appeals is
established by submitting a copy of the referral notice or Notice to
Appear placing the alien in proceedings, any hearing notices issued by
the immigration court, evidence of a timely filed appeal if the alien
appealed the denial of the asylum application to the Board of
Immigration Appeals, or remand order to the Immigration Judge or Board
of Immigration Appeals.
(i) Referrals to an Immigration Judge. Employment authorization
granted after the required 365-day waiting period will continue for the
remaining period authorized (unless otherwise terminated or revoked) if
the asylum officer refers the alien’s asylum application to an
immigration judge . In accordance with 8 CFR 208.7(b)(1), the alien may
be granted renewals of employment authorization while under such review
by the Immigration Judge.
(ii) Appeals to the Board of Immigration Appeals. If the
Immigration Judge denies the alien’s asylum application, any remaining
period of employment authorization will continue for the period
authorized (unless otherwise terminated or revoked) during the period
for filing an appeal with the Board of Immigration Appeals under 8 CFR
1003.38(b) or, if an appeal is timely filed within such period, during
the pendency of the appeal with the Board of Immigration Appeals. In
accordance with 8 CFR 208.7(b)(1), the alien may be granted renewals of
employment authorization during these periods while the appeal is under
review by the Board of Immigration Appeals and any remand to the
Immigration Judge.
(2) Terminations. The alien’s employment authorization granted
pursuant to 8 CFR 274a.12(c)(8) will automatically terminate effective
on the date the asylum officer denies the asylum application, thirty
days after an Immigration Judge denies the asylum application unless
timely appealed to the Board of Immigration Appeals, or the Board of
Immigration Appeals affirms or upholds a denial, regardless of whether
any automatic extension period pursuant to 8 CFR 274a.13(d)(3) is in
place.
(c) Severability. The provisions in this section are intended to be
independent severable parts. In the event that any provision in this
section is not implemented, DHS intends that the remaining provisions
be implemented as an independent rule.
0
5. Amend Sec. 208.9 by adding subject headings for paragraphs (a)
through (c), revising paragraphs (d) and (e), and adding subject
headings for paragraphs (f) and (g) to read as follows:

Sec. 208.9 Procedure for interview before an asylum officer.

(a) Jurisdiction. * * *
(b) Requirements for Interview. * * *
(c) Conduct of Interview. * * *
(d) Completion of the interview. Upon completion of the interview:
(1) The applicant or the applicant’s representative will have an
opportunity to make a statement or comment on the evidence presented.
The asylum officer may, in his or her discretion, limit the length of
such statement or comment and may require its submission in writing.
(2) USCIS will inform the applicant that he or she must appear in
person to receive and to acknowledge receipt of the decision of the
asylum officer and any other accompanying material at a time and place
designated by the asylum officer, except as otherwise provided by the
asylum officer. An applicant’s failure to appear to receive and
acknowledge receipt of the decision will be treated as delay caused by
the applicant for purposes of 8 CFR 208.7.
(e) Extensions. The asylum officer will consider evidence submitted
by the applicant together with his or her asylum application. The
applicant must submit any documentary evidence at least 14 calendar
days in advance of the interview date. As a matter of discretion, the
asylum officer may consider evidence submitted within the 14-day period
prior to the interview date or may grant the applicant a brief
extension of time during which the applicant may submit additional
evidence. Any such extension will be treated as a delay caused by the
applicant for purposes of Sec. 208.7.
(f) Record.. * * *
(g) Interpreter. * * *
* * * * *
0
6. Revise Sec. 208.10 to read as follows:

Sec. 208.10 Failure to appear for an interview before an asylum
officer or for a biometric services appointment for the asylum
application.

(a) Failure to appear for asylum interview or for a biometric
services appointment. (1) The failure to appear for an interview or
biometric services appointment may result in:
(i) Waiver of the right to an interview or adjudication by an
asylum officer;
(ii) Dismissal of the application for asylum;
(iii) Referral of the applicant to the immigration court; or,
(iv) Denial of employment authorization.
(2) There is no requirement for USCIS to send a notice to an
applicant that he or she failed to appear for his or her asylum
interview or biometrics services appointment prior to issuing a
decision on the application. Any rescheduling request for the asylum
interview that has not yet been fulfilled on the date the application
for employment authorization is adjudicated under 8 CFR 274a.12(c)(8)
will be treated as an applicant-caused delay for purposes of 8 CFR
208.7.
(b) Rescheduling missed appointments. USCIS, in its sole
discretion, may excuse the failure to appear for an interview or
biometrics services appointment and reschedule the missed appointment
as follows:
(1) Asylum Interview. If the applicant demonstrates that he or she
was unable to make the appointment due to exceptional circumstances.
(2) Biometrics services appointment. USCIS may reschedule the
biometrics services appointment as provided in 8 CFR part 103.

[[Page 62424]]

PART 274a–CONTROL OF EMPLOYMENT OF ALIENS

0
7. The authority citation for part 274a is revised to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1105a, 1324a; 48 U.S.C. 1806; 8
CFR part 2; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L.
114-74, 129 Stat. 599.

0
8. Amend Sec. 274a.12 by adding the phrase “, unless otherwise
provided in this chapter” at the end of the last sentence in paragraph
(c) introductory text and revising paragraphs (c)(8) and (11).
The revisions read as follows:

Sec. 274a.12 Classes of aliens authorized to accept employment.

* * * * *
(c) * * *
(8) An alien who has filed a complete application for asylum or
withholding of deportation or removal pursuant to 8 CFR parts 103 and
208, whose application has not been decided, and who is eligible to
apply for employment authorization under 8 CFR 208.7 because the 365-
day period set forth in that section has expired. Employment
authorization may be granted according to the provisions of 8 CFR 208.7
of this chapter in increments to be determined by USCIS but not to
exceed increments of two years.
* * * * *
(11) Except as provided in paragraphs (b)(37) and (c)(34) of this
section, 8 CFR 212.19(h)(4), and except for aliens paroled from custody
after having established a credible fear or reasonable fear of
persecution or torture under 8 CFR 208.30, an alien paroled into the
United States temporarily for urgent humanitarian reasons or
significant public benefit pursuant to section 212(d)(5) of the Act.
* * * * *
0
9. Amend Sec. 274a.13 by revising paragraphs (a)(1) and (2) and (d)(3)
to read as follows:

Sec. 274a.13 Application for employment authorization.

(a) * * *
(1) Aliens seeking initial or renewed employment authorization
under 8 CFR 274a.12(c) must apply on the form designated by USCIS with
prescribed fee(s) and in accordance with the form instructions. The
approval of applications filed under 8 CFR 274a.12(c) is within the
discretion of USCIS. Where economic necessity has been identified as a
factor, the alien must provide information regarding his or her assets,
income, and expenses.
(2) An initial employment authorization request for asylum
applicants or for renewal or replacement of employment authorization
submitted in relation to a pending claim for asylum, in accordance with
8 CFR 208.7 and 8 CFR 274a.12(c)(8), must be filed on the form
designated by USCIS in accordance with the form instructions with
prescribed fee(s).
* * * * *
(d) * * *
(3) Termination. Employment authorization automatically extended
pursuant to paragraph (d)(1) of this section will automatically
terminate the earlier of up to 180 days after the expiration date of
the Employment Authorization Document (Form I-766), or on the date
USCIS denies the request for renewal. Employment authorization granted
under 8 CFR 274a.12(c)(8) and automatically extended pursuant to
paragraph (d)(1) of this section is further subject to the termination
provisions of 8 CFR 208.7(b)(2).
* * * * *
0
10. Amend Sec. 274a.14 by:
0
(a) Removing “or” at the end of paragraph (a)(1)(ii);
0
(b) Removing the period and adding in its place “; or” at the end of
paragraph (a)(1)(iii); and
0
(c) Adding paragraph (a)(1)(iv).
The addition reads as follows:

Sec. 274a.14 Termination of employment authorization.

(a) * * *
(1) * * *
(iv) Automatic termination is provided elsewhere in this chapter.

Kevin K. McAleenan,
Acting Secretary.
[FR Doc. 2019-24293 Filed 11-13-19; 8:45 am] BILLING CODE 9111-97-P

</bullet></bullet></bullet></bullet></bullet></bullet></bullet></bullet></bullet></bullet></bullet></bullet></bullet></bullet></bullet></bullet></bullet></bullet></bullet></bullet></bullet></bullet></bullet></bullet></bullet></bullet></bullet></bullet></bullet></bullet></pre>
{$inline_image

You May Also Be Interested In:

Legal Alert Title

May 11 – Permanent Residency, House Bill

Article: Obtaining I-551 Stamp as Evidence of Conditional Lawful Permanent Residency during COVID-19 By Wolfsdorf Rosenthal LLP

Article: Stuck Abroad And Unable To Return To The U.S. Within 180 Days? By David H. Nachman, Esq., Michael Phulwani, Esq. and Ludka Zimovcak, Esq.

May 8 – Travel Restrictions, COVID-19

May 7 – Top Articles And News For April 2020

Article: Recommendations for U.S.C.I.S. Reopening Offices during Covid-19 By Alan Lee, Esq.

Article: COVID-19 Exacerbates Form I-829 Processing Pain for EB-5 Investors, Mandamus Lawsuits Growing in Popularity By Matt Galati

May 6 – Healthcare Immigration Now

News: Asylum Application, Interview, and Employment Authorization for Applicants

You May Also Be Interested In:

Footer