USCIS Proposes Rule on EADs Related to Pending Asylum Applications

On November 13, 2019, the United States Citizenship and Immigration Services (USCIS) proposed a new rule in the Federal Register titled “Asylum Application, Interview, and Employment Authorization for Applicants” [PDF version]. The rule is open for public comment through January 13, 2019. It is important to note that no provisions of the rule are currently in effect.

The USCIS summarized the proposed rule on its website [PDF version]. It explains that the rule was prompted by President Donald Trump's April 29, 2019, Presidential Memorandum on Additional Measures to Enhance Border Security and Restore Integrity to Our Immigration System [PDF version].

The USCIS is proposing preventing most aliens who enter the United States illegally from obtaining employment authorization on the basis of long-pending asylum applications. It is also proposing preventing aliens who file their asylum applications more than one year after their last entry into the United States — lawful or otherwise — from obtaining employment authorization on the basis of a pending asylum application. For asylum applicants who may be otherwise eligible for employment authorization, the USCIS is proposing considering certain federal or state felonies and other criminal offenses as bars to employment authorization based on pending asylum applications. Additionally, “[u]nresolved arrests or pending charges may result in the denial of the application for employment authorization as a matter of discretion.”

The proposed rule includes a provision clarifying that if an asylum applicant fails to appear at a required appointment relating to the asylum application, his or her entire application may be dismissed. In addition or in the alternative, failure to appear at a required appointment could lead to the denial of employment authorization relating to that application.

Finally, the rule proposes automatically terminating grants of employment authorization relating to pending asylum applications when the denial of an application becomes administratively final.

As it stands, the proposed rule would narrow the classes of asylum applicants eligible for employment authorization based on pending applications. The provisions relating to illegal entry and criminal charges and convictions could be especially significant in this regard. As we noted at earlier, however, none of the proposals are currently in effect. The USCIS will likely receive many comments both for and against the proposals during the comment period, and it may modify any final rule in accordance with public feedback. It is too early to say whether a final rule will ever take effect or how it may differ from the proposed rule if it does.

We will monitor the proposed rule-making regarding asylum employment authahorization and update the website with more information when it is available.