USCIS Announces Final Rule on Employment Authorization for Asylum Applicants

On June 26, 2020, USCIS published its final rulemaking multiple changes to the regulations governing asylum applications and eligibility for work authorization based on a pending asylum application. The final 97-page rule will be effective on August 25, 2020, and will strip most asylum seekers of the right to seek work authorization in the following ways:

  • The rule blocks work permits for almost all asylum applicants arriving at the U.S.-Mexico border
  • The rule bans work permits for anyone who crosses the border between ports of entry to seek asylum
  • Asylum seekers will have to wait 365 days after filing an asylum application, instead of 180, to seek a work permit
  • The rule strips work permits from anyone who lost their case at the Board of Immigration Appeals and is proceeding with an appeal at the federal court level

While the rule was open to public comments, many expressed concern that this proposed rule would force many vulnerable asylum seekers into desperate situations while battling their often years-long asylum battles. In response, the Department of Homeland Security suggested:

“Asylum seekers who are concerned about homelessness during the pendency of their employment authorization waiting period should become familiar with the homelessness resources provided by the state where they intend to reside.” (Rule, Page 213)

Advocates, such as Aaron Reichlin-Melnick, worry “[t]his rule will drive most asylum seekers into desperate circumstances and force them to rely on charity and state aid (since they are not eligible for federal benefits) or work without authorization in order to survive.” But other proposed rules from the administration threaten to ban applicants from asylum should they work without permission and fail to report even a penny of income to the IRS.

As a firm, we will continue to monitor the administration’s proposed changes to asylum law and subsequent court challenges.