Further, the two rulemakings differ in subject matter—the 2000 rulemaking addressing asylum and this rulemaking addressing EAD eligibility. Moreover, a key inference is that under LIFO, the majority of DHS affirmative asylum cases were adjudicated in less than one year.
Some commenters believed that denying employment authorization during the federal appeals process was an Equal Protection and Due Process violation. However, DHS has concluded it will slightly modify the provision requiring that an applicant who enters illegally present himself or herself “without delay” to the Secretary of Homeland Security (or his or her delegate), to read “no later than 48 hours after the alien's entry or attempted entry.” DHS initially provided the “without delay” general standard in the regulatory text but only explained the 48-hour requirement in the proposed form revisions and instructions for Form I-765. In FY 2017, CBP apprehended 94,285 family units from the Northern Triangle countries at the southern land border. In addition, under While the commenters are correct that DHS collects biometrics when an alien first files for asylum, DHS does not view the collection of biometrics at the time an alien files an application for employment authorization as duplicative or wasteful. 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is no impact from this change because USCIS is already returning incomplete applications, and this rule would remove outdated regulatory text that no longer applies.The rule also codifies certain protocols related to the length of EAD validity and DHS authorities in the asylum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. That commenter said that under the modern asylum system created by the 1980 Refugee Act, the government anticipated that asylum applications would be processed quickly, and created a 180-day processing deadline to ensure that employment authorization could be issued expeditiously.
USCIS adjudicators assess whether on balance a favorable exercise of discretion is warranted in light of the totality of the circumstances.
Commenters, mostly attorneys and advocacy groups, said that the proposed rule would negatively affect the legal community by:a. There is no mechanism for an asylum seeker to gain immediate employment authorization upon arrival to the United States. Asylees have a “right to work,” while asylum applicants do not.The eligibility distinctions drawn by DHS in this rule are analogous to those in Similar to LPRs with five or more years of residence in the United States, the relative permanency of asylees strengthens the ties with this country and therefore they enjoy immediate and secure access to a “bounty” of benefits, including employment authorization and its potential attendant income.DHS recognizes that many aliens choose to hire counsel or seek pro bono assistance as they pursue their asylum claims, but disagrees that delaying or barring employment authorization while an asylum application is pending prevents access to due process under law.
Although DHS was unable to quantify some of these impacts because it does not have data on the length of time that asylum seekers have been working or might continue to work had it not been for this rule, DHS did qualitatively consider the impacts of the rule on asylum seekers whose EAD renewal would be subject to changes made by this rule.
Accordingly, the number of enforcement actions involving non-Mexican aliens increased by more than 1,600 percent from May FY 2017 to May FY 2019, and the percentage of enforcement actions at the southern land border involving non-Mexican aliens increased from 36 percent to 84 percent.
The results in Table 16 call for explanation.Table 16—Biometrics Collection Rate by Form GroupingThe BCR for different form types varies due to the eligibility categories and age characteristics of the filers and dependents. Finally, unfamiliarity with asylum procedure does not rise to the level of an extraordinary circumstance sufficient to excuse the failure to file within one year.DHS received numerous comments on the addition of criminal bars to eligibility for employment authorization. Moreover, these issues relate directly to the alien's underlying asylum claim and are therefore better suited for determination by an asylum officer or IJ than a USCIS ISO.
Further, if the alien's asylum claim is granted, he or she would be immediately employment authorized incident to status.As for concerns about the procedures for EAD adjudications and how USCIS officers will be able to determine if an exception has been met, DHS does not believe it needs to articulate any new procedures in this rule for EAD adjudications. Flights to and From Cuba, This interim final rule will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. To ensure consistency with a separate rulemaking entitled “Under this rule, DHS will 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 employment authorized until the expiration date on their EAD, unless the card is terminated or revoked on the grounds specified in prior regulations. And of those who did proceed to file asylum applications, relatively few established that they should be granted such relief. 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 this rule (under the LIFO protocol). 365-Day Waiting Period To Apply for EADs Based on Pending Asylum Applications1.