Introduction

On February 20, 2026, the Department of Homeland Security (DHS), through U.S. Citizenship and Immigration Services (USCIS), placed on public inspection a notice of proposed rulemaking (NPRM) titled Employment Authorization Reform for Asylum Applicants (RIN 1615-AC97), scheduled for Federal Register publication on February 23, 2026.[1]

The proposal is among the most consequential changes to asylum-related employment authorization since Congress and the executive branch introduced waiting periods and “clock” mechanics in the mid-1990s. It would do so by restructuring eligibility around a simple premise: asylum applicants should not receive work authorization while their claims remain unresolved unless the asylum system is adjudicating quickly enough to approximate Congress’s aspiration of timely asylum determinations.[1]

The NPRM’s signature mechanism is a pause on the acceptance of initial (c)(8) employment authorization applications whenever USCIS’s average processing time for affirmative asylum exceeds 180 days over a consecutive 90-day period, with acceptance resuming only when the same metric returns to 180 days or less (again over a consecutive 90-day period).[1]

DHS acknowledges the operational implication in unusually stark terms: given the size and age of the affirmative asylum backlog, newly filed asylum EAD applications would likely be paused “possibly many years,” and the preamble offers illustrative estimates in which the pause could persist 14 to 173 years (or longer), depending on assumptions about future receipt levels.[1]

This article situates the proposal within the statutory and regulatory architecture of asylum employment authorization, explains the NPRM’s major design features, and evaluates the most salient administrative-law issues likely to shape both public comments and eventual litigation.

Although employment authorization is indispensable to most asylum applicants’ ability to survive prolonged adjudication, Congress has long treated asylum work authorization as a discretionary benefit rather than an entitlement. The Immigration and Nationality Act (INA) provides that an asylum applicant may not receive employment authorization earlier than 180 days after filing, and it contemplates denial where the applicant causes delay, but it does not itself guarantee an EAD; instead, it leaves the operational system to regulation.[2]

In current regulations, DHS implements the statutory 180-day floor through a two-step structure: the applicant generally may apply for an EAD at 150 days after filing a complete asylum application, and USCIS historically was required to adjudicate the initial (c)(8) EAD application within 30 days, such that issuance would not occur before day 180.[3]

That clock-based design has generated sustained controversy on both policy and administrability grounds. A Congressional Research Service (CRS) overview describes the modern “asylum EAD clock” as a start/stop system administered differently by USCIS and EOIR, with complexity that can produce confusion and inconsistent outcomes.[4]

Recent litigation and settlement amplified the clock’s salience: the Garcia Perez settlement, approved in September 2024, created mechanisms for certain asylum applicants to obtain information about clock status and challenge stoppages.[7]

Separately, the 30-day adjudication requirement for initial asylum EADs became a focal point of class litigation and subsequent rulemaking. DHS’s prior efforts to remove or relax that timeline were met with judicial skepticism and vacatur, including decisions that restored or reinforced the 30-day processing framework.[9]

Agency capacity constraints have deepened. A DHS Office of Inspector General audit concluded that USCIS did not adjudicate affirmative asylum applications in a manner consistent with statutory timelines and that, at the end of FY 2023, USCIS had more than one million asylum cases pending, including more than 786,000 affirmative cases pending longer than 180 days.[6]

Against this factual backdrop, the NPRM’s central move – conditioning asylum EAD intake on affirmative-asylum processing speed – functionally ties the ability to seek lawful employment to structural agency performance that DHS’s own watchdog has already characterized as chronically deficient.[6]

The NPRM’s Core Design: De-Clocking Eligibility, Extending Agency Processing, and Pausing Intake

The NPRM proposes an interlocking package that makes sense only when read as a system. DHS is not merely lengthening the waiting period; it is attempting to decouple work authorization from pendency itself and to relocate asylum applicants’ access to lawful work closer to the point of substantive asylum adjudication.[1]

First, DHS proposes to pause acceptance of initial (c)(8) EAD applications when the average processing time for affirmative asylum applications over a consecutive 90-day period exceeds 180 days. The processing-time calculation is based solely on affirmative cases, yet the acceptance pause would reach initial (c)(8) filings broadly, including those associated with defensive claims.[1]

Second, DHS proposes to replace the current clock construct with a 365-calendar-day waiting period beginning upon receipt of a complete asylum application, emphasizing administrability gains and reduced dispute-driven workload.[1]

Third, for initial (c)(8) EAD applications filed on or after the effective date of the final rule, DHS proposes extending USCIS’s EAD adjudication timeframe from 30 days to 180 days, asserting that longer timelines better accommodate vetting and operational constraints.[1]

Fourth, DHS proposes to require biometrics for all (c)(8) EAD applicants, including renewals, and to deny EAD applications for failure to appear, framing the change as a benefit-integrity measure and as a prerequisite for more reliable eligibility screening.[1]

Fifth, the NPRM proposes new (c)(8) eligibility bars keyed to manner of entry, timing of asylum filing, and criminal ineligibility concepts. Among the most significant, DHS would bar (c)(8) eligibility for certain post-effective-date entries without inspection absent narrow exceptions, and it would restrict (c)(8) eligibility for asylum applications filed more than one year after arrival (absent recognized exceptions), while also expanding criminal ineligibility alignment with asylum statutory bars.[1]

Sixth, DHS proposes to terminate (c)(8) employment authorization more rapidly after asylum denials, including immediate termination after certain asylum officer denials (absent referral) and termination following immigration judge denials absent proof of a timely appeal.[1]

Finally, DHS proposes to prioritize adjudication of the underlying asylum application if derogatory information surfaces during EAD processing, reflecting a broader effort to use EAD adjudication as a screening and triage mechanism for the asylum docket.[1]

DHS’s Own Baseline Assumptions: The Proposal as a De Facto Long-Term Shutdown

The NPRM is notable for the candor with which it describes the likely duration of a pause. DHS states that new EAD applications would be paused for an extended period, potentially “many years,” and offers illustrative projections under which the pause could last 14 years (if receipts decline by 80 percent) or as long as 173 years (if receipts decline by 50 percent), subject to explicit caveats.[1]

Because the pause trigger is keyed to affirmative processing times, DHS anticipates that if the pause is eventually lifted, initial (c)(8) EAD issuance would occur primarily for defensive asylum applicants, since affirmative claims would be adjudicated rapidly enough that asylum grants or denials would generally precede the end of the 365-day waiting period.[1]

Administrative-Law Fault Lines After Loper Bright: Authority, Reasoned Decisionmaking, and Reliance Interests

The NPRM’s legal durability will turn less on policy disagreement than on familiar Administrative Procedure Act (APA) questions: whether DHS has statutory authority to adopt the framework and whether the agency has offered reasoned decisionmaking that accounts for the relevant facts, alternatives, and reliance interests.[14]

DHS’s principal authority argument is anchored in INA section 208(d)(2), which authorizes the Secretary to permit employment for asylum applicants subject to the statutory floor. CRS similarly emphasizes that the INA does not guarantee employment authorization; rather, it permits DHS to provide it by regulation.[2]

The harder interpretive question is whether DHS may design a regime that, in operation, withholds work authorization from most asylum applicants for prolonged periods by conditioning intake on a benchmark that DHS itself suggests could be unattainable for decades. Courts evaluating that question may do so more directly after the Supreme Court’s rejection of Chevron deference in Loper Bright Enterprises v. Raimondo, which directs courts to exercise independent judgment on statutory meaning.[15]

Even where authority exists, arbitrary-and-capricious review under State Farm requires a rational connection between the facts found and the choices made. The pause mechanism may be a focal vulnerability because it uses affirmative asylum processing time as a proxy while imposing consequences across affirmative and defensive applicant populations.[12]

Reliance interests are also central. DHS acknowledges that applicants filed asylum claims against a longstanding expectation that, absent applicant-caused delays, they could apply for an EAD after 150 days and obtain adjudication within 30 days. Under Regents of the University of California, serious reliance interests must be considered and addressed when an agency changes course.[13]

The NPRM also addresses the Garcia Perez settlement, stating that to the extent of conflict, the new 365-day calculation would supersede clock-based settlement mechanisms. Whether a final rule can supersede those mechanisms will depend on the settlement’s terms and any retained judicial oversight, but DHS plainly signals its intent to unwind the clock infrastructure that generated the dispute.[1]

The Illegal-Entry Bar and the International-Law Gesture: A Normative Argument with Domestic Consequences

One of the NPRM’s most legally and politically charged features is the proposed illegal-entry bar with a 48-hour reporting window and a “good cause” concept. DHS references refugee treaty norms, including the principle against penalizing certain refugees for illegal entry where they present themselves without delay and show good cause, while proposing a bright-line 48-hour framework with exceptions.[20]

As a domestic administrative matter, the key question is not whether Article 31 is directly enforceable, but whether DHS’s operationalization is reasonable and administrable. Having invoked humanitarian and treaty-adjacent concepts, DHS may be expected to justify why 48 hours is an appropriate proxy for “without delay,” and why its exception structure is sufficient to avoid arbitrary results in real-world border and post-entry settings.[1]

Practical Stakes and the Comment Record

Because the NPRM concedes that a pause could last many years, the comment record is likely to concentrate on a small set of determinative questions: whether DHS’s predictive model is defensible; whether the affirmative-processing-time trigger is a rational proxy for the asserted harms; what DHS has done to evaluate labor-market and humanitarian consequences of a long-term shutdown; and whether DHS adequately considered alternatives that could reduce perceived EAD incentives without effectively eliminating lawful work authorization during pendency.[1]

Finally, DHS’s reliance on backlogged adjudication as a gatekeeper is likely to be contested not only as a policy choice but as a structural lever that shifts the costs of delay to asylum applicants. DHS’s own watchdog findings about chronic backlog and statutory-timeline failures provide factual support for DHS’s narrative of system strain, but they also sharpen the counterargument that it is irrational – or at least inequitable – to condition lawful work on a benchmark the government has been unable to meet for years.[6]

Footnotes

  1. Employment Authorization Reform for Asylum Applicants, 91 Fed. Reg. _ (proposed Feb. 23, 2026) (to be codified at 8 C.F.R. pts. 208 & 274a) (FR Doc. 2026-03595)
  2. Immigration and Nationality Act (INA) § 208(d)(2), 8 U.S.C. § 1158(d)(2); see also Cong. Rsch. Serv., IF12993, Employment Authorization for Asylum Applicants 1-2 (May 8, 2025)
  3. 8 C.F.R. § 208.7(a)(1) (2025)
  4. Cong. Rsch. Serv., IF12993, Employment Authorization for Asylum Applicants 1-2 (May 8, 2025)
  5. INA § 208(d)(5)(A)(iii), 8 U.S.C. § 1158(d)(5)(A)(iii).
  6. Off. of Inspector Gen., U.S. Dep’t of Homeland Sec., OIG-24-36, USCIS Faces Challenges Meeting Statutory Timelines and Reducing Its Backlog of Affirmative Asylum Claims 1-2 (July 3, 2024)
  7. Garcia Perez v. Dep’t of Homeland Sec., No. 2:22-cv-00806 (W.D. Wash. Sept. 26, 2024) (order approving settlement).
  8. Exec. Off. for Immigr. Rev., U.S. Dep’t of Just., Garcia Perez Settlement FAQ (updated June 17, 2025)
  9. Asylumworks v. Mayorkas, 590 F. Supp. 3d 11 (D.D.C. 2022).
  10. Rosario v. U.S. Citizenship & Immigr. Servs., 365 F. Supp. 3d 1156 (W.D. Wash. 2018).
  11. Casa de Maryland, Inc. v. Wolf, 486 F. Supp. 3d 928 (D. Md. 2020).
  12. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983).
  13. Dep’t of Homeland Sec. v. Regents of Univ. of Cal., 591 U.S. 1 (2020).
  14. Administrative Procedure Act, 5 U.S.C. § 706(2)(A).
  15. Loper Bright Enters. v. Raimondo, 603 U.S. _ (2024), slip op.
  16. INA § 208(a)(2)(B), 8 U.S.C. § 1158(a)(2)(B).
  17. INA § 208(a)(2)(D), 8 U.S.C. § 1158(a)(2)(D).
  18. 6 U.S.C. § 279(g)(2).
  19. INA § 242, 8 U.S.C. § 1252.
  20. Convention Relating to the Status of Refugees art. 31(1), July 28, 1951, 189 U.N.T.S. 137.
  21. Protocol Relating to the Status of Refugees, Jan. 31, 1967, 606 U.N.T.S. 267.