Comment Letter on Employment Authorization Reform for Asylum Applicants
SUMMARY
The Immigration Committee (Dorian Rojas and Ludivine Van De Hayden, Co-Chairs) issued a comment urging the Department of Homeland Security rescind its proposed rule which proposes several changes that limit and restrict asylum applicants’ access to a work permit through amendments to processing times, application acceptance, and eligibility requirements. The Committee argues that the proposals would change key features of the U.S. asylum system and process in the name of administrative efficiency, creating barriers for those who are seeking protection in the United States and ultimately blocking full access to their rights under both U.S. and international law.
Additionally, the proposals would make it impossible for many asylum seekers to work legally while their claims are pending. Furthermore, pausing acceptance of asylum applications based on agency backlogs, and lengthening adjudication timelines would deprive asylum seekers of any realistic ability to support themselves or their families. These changes would harm immigrants of color, exacerbate poverty, homelessness, and reliance on public or charitable assistance, while doing nothing to address the significant processing delays that are largely attributable to government resource and staffing failures rather than applicant misconduct. Therefore, the Committee argues that DHS should withdraw the proposed rule in its entirety.
REPORT
Division of Humanitarian Affairs
Office of Policy and Strategy
U.S. Citizenship and Immigration Services
Department of Homeland Security
5900 Capital Gateway Drive
Camp Springs, MD 20746
Re: U.S. Citizenship and Immigration Services Notice of Proposed Rulemaking, DHS Docket No. USCIS-2025-0370,[1] Employment Authorization Reform for Asylum Applicants
To Whom It May Concern,
The Immigration and Nationality Committee of the New York City Bar Association (the “Immigration Committee”) respectfully submits this comment requesting that the Department of Homeland Security (“DHS”) rescind its February 23, 2026 Notice of Proposed Rulemaking (“NPRM”), which proposes several changes that limit and restrict asylum applicants’ access to an Employment Authorization Document (“EAD” or “work permit”) through amendments to processing times, application acceptance, and eligibility requirements. See Employment Authorization Reform for Asylum Applicants, 91 Fed. Reg. 8616 (Feb. 23, 2026) (DHS Docket No. USCIS-2025-0370).
I. SUMMARY OF THE COMMENT
The Immigration Committee urges DHS to rescind the NPRM so that asylum applicants can continue to provide for themselves and their families, while also contributing to the United States economy,[1] as they wait for U.S. Citizenship and Immigration Services (“USCIS”) or the Executive Office for Immigration Review (“EOIR”) to adjudicate their claims. As is noted in the NPRM itself, there are different metrics for considering the lifetime of a claim, one of which is processing time. Processing time is “the time from receipt to completion for each individual form,”[2] and it is during this time that asylum applicants are reliant on work authorization to be able to sustain themselves.
The proposals would change key features of the U.S. asylum system and process in the name of administrative efficiency, i.e., “enhancing benefit integrity, protecting national security, and reducing resource strains,”[3] creating barriers for those who are seeking protection in the United States and ultimately blocking full access to their rights under both U.S. and international law. It also abandons more than three decades of settled policy without adequately addressing the significant reliance interests of asylum seekers, entire workplaces, and other stakeholders. To the extent that the proposed rules changes would result in effectively closing the U.S. asylum system for many applicants, such result is vastly different from the stated purpose of administrative efficiency and is an impermissible motive for agency action under the Administrative Procedure Act (“APA”).
The proposals would make it practically impossible for many asylum seekers to work legally while their claims are pending. Various extensions set forth in the NPRM would lead to additional delays on top of those that applicants already face as they await the overall processing of their asylum application. A change such as extending the waiting period for EADs from 180 to 365 days immediately leads to almost six more months without work authorization, which would cause severe harm to the applicants, their families, and the communities they live and work in.
With this NPRM, DHS fails to consider how many asylum seekers would be effectively barred from working for years given the added restrictions to existing policies that complicate an applicant’s ability to obtain employment authorization. Finally, by preventing lawful work while an asylum application is pending, the NPRM would disproportionately harm people of color, who make up the majority of asylum seekers in the United States. DHS should rescind the NPRM in its entirety.
II. ORGANIZATIONAL INTEREST
The Immigration Committee’s members include legal services providers, private practitioners, academics, and government attorneys. Members provide legal assistance to many asylum seekers every day. We have members who work for non-profit organizations and law firms of all sizes as well as solo practitioners dedicated to serving those in their local communities throughout the five boroughs. Any one of us who represent asylum seekers know how vital employment authorization is to their livelihood. From supporting their families to covering basic needs such as housing, transportation, legal services, and medical care, these individuals rely on being able to work legally and be productive members of the workforce.
The NPRM directly harms the clients we serve in New York and asylum seekers across the country, undermining our mission to uphold access to justice in support of a fair society.
III. THE NPRM’S PROPOSALS WOULD FURTHER RESTRICT ASYLUM SEEKERS’ ACCESS TO EMPLOYMENT AUTHORIZATION
The NPRM proposes sweeping changes that would drastically limit asylum seekers’ access to work authorization while their claims are pending. The regulatory framework put forward creates restrictive barriers that would make pursuing asylum economically untenable, deter bona fide applicants from seeking protection in the United States, and worsen existing backlogs.
Extended waiting period and adjudication timeline. Currently, asylum seekers may apply for an EAD 150 days after their application for asylum is received,[4] and USCIS must decide the application within 30 days.[5] This timeline reflects DHS’s longstanding recognition that it would be inappropriate to leave asylum seekers unable to support themselves any longer than 180 days while the government adjudicates their asylum claims.[6]
The NPRM proposes to extend the 150-day waiting period to 365 calendar days from the date an asylum application is received by USCIS, and to increase the processing time once an initial EAD application is received from a mandatory 30-day period to a flexible period of 180 days that DHS can extend even further for “additional background checks or vetting.”[7] Thus, the NPRM more than triples the current 180-day total wait period for an initial asylum-based EAD to at least 545 days. These changes alone would force asylum seekers to survive for a minimum of 18 months without lawful employment while their claims remain pending—an impossible burden that will deter many from pursuing their claims at all.
Pause on initial work permits until the asylum backlog is cleared. In addition to this extended waiting period, the NPRM reserves USCIS’s right to “pause” initial work permit processing when average affirmative asylum processing times exceed 180 days as identified by the USCIS director and would only resume work permit processing after those averages fall to 180 days for a sustained period. Not only does DHS explain that meeting such a benchmark would take the agency between 14 and 173[8] years, but it also admits that there would likely be an immediate initial pause if this went into effect.[9]
New eligibility barriers. For both initial and renewal work permits, DHS also proposes imposing a series of new eligibility barriers and discretionary standards that would transform the work permit process into a partial adjudication of the underlying asylum claim, and impose standards that are not required to obtain asylum approval. Under the NPRM, an asylum applicant would be ineligible for an EAD if (i) they applied for asylum more than one year after entering the United States; (ii) there is “reason to believe” a criminal bar to asylum applies; (iii) the person entered or attempted to enter the United States without inspection and without presenting themselves as an asylum seeker within 48 hours of arrival; or (iv) the person misses an asylum interview, court hearing, or biometrics appointment.[10] The first two criteria require nuanced legal and factual analyses that traditionally occur during the adjudication of the asylum application; the second two criteria impose unrelated barriers that have little to do with whether an applicant ultimately qualifies for asylum. All of the new criteria will needlessly slow down work permit processing and screen out applicants who have valid asylum claims, and in turn, extend the backlog that this NPRM aims to mitigate. More time would likely be spent adjudicating “C(8)EAD eligibility” than working to improve processing times (especially in the case of the pause that could happen with this in effect).
The proposed eligibility changes would also significantly increase the complexity of preparing and submitting asylum-based work permit applications. By introducing new eligibility restrictions and additional determinations tied to an applicant’s immigration history, the NPRM would require applicants, attorneys, and support staff to gather and review substantially more documentation before a work permit application can be filed. These added requirements would increase the time and resources needed to prepare each application and place new burdens on legal service providers and community organizations that assist asylum seekers. For organizations that conduct pro se work permit clinics, the NPRM would make it far more difficult to help large numbers of applicants complete applications accurately and efficiently, because each application would require individualized review of facts and eligibility criteria that cannot easily be addressed through standardized clinic models. The increased complexity would also likely result in more incomplete or incorrectly filed applications, which in turn would contribute to longer adjudication times and increased delays for both initial and renewal work permits.
These changes contradict DHS’s stated goal of reducing backlogs by inserting new, complex adjudications into the work permit process.[11] Moreover, they do not address the purported goal of deterring frivolous or fraudulent applications especially since many bona fide asylum seekers would be prevented from working lawfully while waiting for adjudication.
Complete discretion to deny even where eligibility criteria are met. Layered on top of these new barriers to work permit eligibility, the NPRM would make the approval of both initial and renewal work permit applications discretionary. Under current regulations, if an asylum applicant meets the eligibility requirements, USCIS must grant work authorization.[12] Under the NPRM, however, USCIS could deny an application in its sole discretion for unspecified discretionary reasons, without identifying the basis for the denial.[13] Additionally, the NPRM would require the evaluation and analysis of some parts of an individual’s asylum claim thus bringing a litigious approach to the work permit process, and it is unclear how this would work in practice or how applicants and adjudicators are expected to navigate this complex and opaque process.
New reasons to reject asylum filings and eliminating the “deemed complete” safeguard. The NPRM also adds new technicalities as grounds for rejecting asylum application filings and eliminates the 30-day “application deemed complete” safeguard—under which an asylum application is treated as filed if USCIS fails to issue a receipt within 30 days—leaving applicants waiting indefinitely to even start (or be forced to re-start) the 365-day wait before they can apply for a work permit.[14] The NPRM claims these changes will help “preserve finite government resources,”[15] but in reality these provisions would only create additional procedural delays and uncertainties for applicants while increasing the number of repeated filings to USCIS as applicants and their attorneys attempt to comply with new technical rules.
Prompting denial of asylum applications when an asylum applicant applies for a work permit: Under the NPRM, USCIS would “prioritize” the adjudication[16] of an asylum application if the agency finds “derogatory information” in the person’s work permit application.[17] The NPRM never defines “derogatory information” or explains how adjudicators would identify or evaluate it. The NPRM claims this change will improve efficiency but does not explain how it would reduce the asylum backlog. Instead, this provision would divert adjudicatory resources toward cases the agency believes should be denied, leaving long-pending meritorious claims waiting even longer for adjudication.
All told, the NPRM proposes more than 15 substantive changes to longstanding law and policy governing asylum seekers’ eligibility for work authorization. These provisions would make it extraordinarily difficult, if not impossible, for asylum seekers to obtain or maintain a work permit while their claims are pending. DHS claims these sweeping restrictions are necessary to deter fraud, protect national security, and relieve pressure on agency resources, but the NPRM does not explain how curtailing work authorization would meaningfully advance those goals.[18] Rather than reflect reasoned decision-making, the NPRM would instead create conditions so economically untenable that many people with meritorious asylum claims will be deterred from pursuing protection in the United States altogether.
IV. THE NPRM WOULD INFLICT SEVERE HARMS ON ASYLUM SEEKERS AND THEIR FAMILIES
Because of limitations imposed by the NPRM, asylum seekers would be excluded from lawful work opportunities while their asylum cases are pending. Typically, asylum adjudications could take more than 6 years,[19] and with these changes, most people lawfully seeking protection—and their children, including U.S. citizens—would be at risk of being without household income for significantly more time than under current regulations. Additionally, through no fault of their own, some could be arbitrarily denied renewal work authorization even after initially obtaining it.
The NPRM acknowledges in passing that it would deter some bona fide asylum seekers from pursuing asylum,[20] but it fails to meaningfully examine the nature and scope of the harm to those individuals.[21] In reality, the NPRM would cause numerous predictable and devastating harms for asylum seekers, including: (A) losses in wages and widespread economic ripple effects; (B) impacts on health, safety, and well-being; (C) limited ability to obtain identification and licensing documents; (D) inability to pay for legal representation or prepare one’s asylum claim; and (E) increased vulnerability to exploitative labor markets and unsafe living conditions.
A. The NPRM Would Deprive Asylum Seekers Of Tens Of Billions In Wages Per Year
The NPRM itself estimates that asylum seekers could lose a massive sum in wages—between $34.6 billion and $126.6 billion each year—due to the NPRM’s restrictions on asylum seekers’ ability to work lawfully.[22] This estimate, which significantly understates the broader economic harm the NPRM would cause,[23] on its own warrants rescission of the NPRM. Rather than conserving resources or improving efficiency, the NPRM would force legally present workers out of lawful employment and deprive them—and the communities and employers that rely on them—of significant lawful economic participation for years. At the same time, the proposed rule would also prevent the entry of new lawful workers into the labor market, further constricting workforce supply in industries that already face persistent labor shortages.
B. The NPRM Would Substantially Harm Asylum Seekers’ Health, Safety, And Well-Being
By preventing asylum seekers from working lawfully while their cases remain pending, the NPRM would substantially harm asylum seekers’ health, safety, and well-being.[24] Because asylum adjudications routinely take years, the NPRM would force many asylum seekers and their families to survive for extended periods without lawful income.
The NPRM would also cause or exacerbate mental health harms for individuals who have already fled persecution and experienced trauma and are attempting to rebuild their lives while awaiting protection.
Without the ability to work, many asylum seekers face heightened risks of housing instability, food insecurity, limited to no health care and education access, and loss of other essential services. This could leave the U.S. and its states’ public infrastructures in positions where there are not enough resources available to support these asylum seekers who are unable to work. Furthermore, these hardships will not be limited to just the asylum seekers themselves. Many applicants are heads of household or parents of children—including U.S. citizen children—whose health, stability, and development will be directly affected when their parents are prevented from working and supporting their households.
C. The NPRM Would Curtail Access To Government Identification, Driver’s Licenses, And Professional Licenses
By preventing or indefinitely delaying work permits for asylum seekers, the NPRM would cut off many asylum seekers’ access to government identification. Work permits are a primary form of government-issued identification for asylum seekers, especially minor children.[25] Without a valid EAD, asylum seekers may be unable to obtain or maintain basic identification needed for daily life and would face numerous challenges not being eligible for health care, banking services, social services, and local and regional travel within the United States. The NPRM would also hamper access to driver’s licenses, as most states require proof of legal presence in the U.S. and a valid work permit may be the only valid proof of status an asylum seeker has to obtain or renew a driver’s license. As a result, asylum seekers who cannot apply for an initial or renewal work permit may also lose the ability to drive legally, even when driving is necessary to maintain employment, access medical care, or transport children to school and other essential activities. For the same reasons, the NPRM would also restrict qualified asylum seekers’ access to occupational and professional licenses.
D. The NPRM Would Greatly Increase Asylum Seekers’ Vulnerability To Exploitation
By stripping asylum seekers of the ability to work lawfully, the NPRM will also increase the likelihood that asylum seekers will face exploitation and abuse at work and at home. Individuals who are barred from lawful employment who are still responsible for supporting their families often face intense pressure to accept unsafe, unstable, or exploitative working or living conditions.
The NPRM therefore risks driving many asylum seekers into informal or underground employment where labor protections are weaker and workers are more vulnerable to wage theft, coercion, unsafe working conditions, and other forms of abuse. Likewise, the financial instability created by prolonged unemployment may force asylum seekers into unsafe housing arrangements or predatory relationships simply to meet basic needs.[26] Rather than promoting integrity or security, the proposed restrictions expose already vulnerable individuals to greater risks of harm.
E. The NPRM Would Make It Much Harder For Asylum Seekers To Obtain Immigration Counsel And Pursue Their Claims For Protection
By rendering asylum seekers unable to lawfully work, the NPRM would also severely undermine asylum seekers’ ability to obtain legal representation and pursue their claims.[27] Without the ability to earn income, many asylum seekers will be forced to navigate complex immigration proceedings without legal assistance. Because preparing an asylum claim is notoriously complex and costly, many asylum seekers rely on lawful employment to afford counsel and gather and prepare the evidence necessary to support their cases.[28]
This is particularly concerning for those with asylum proceedings before immigration courts, where they must present legal arguments and evidence in an adversarial process against a government attorney and before an immigration judge.[29] With today’s current levels of immigration enforcement, the stakes are even higher: losing a case includes not only deportation to a country where an individual fears persecution, but also possible removal to third countries where they have no ties and also face serious harm.[30] By leaving applicants unable to obtain work authorization and thus earn the income needed to secure legal counsel, the proposed rule will predictably force many individuals to confront these life-or-death proceedings alone (which adds to existing high numbers of unrepresented individuals in immigration proceedings). The result will not merely be procedural disadvantage—it will be a dramatically increased risk that individuals with valid claims for protection will be removed to countries where they face persecution, torture, or other grave harm.
DHS fails to meaningfully acknowledge or address these substantial harms the NPRM would impose on asylum seekers.
V. THE NPRM IGNORES DECADES OF POLICY AND RELIANCE ON ASYLUM SEEKERS’ ABILITY TO WORK
For over 30 years, federal policy has recognized that asylum seekers should be able to work legally while their claims are pending.[31] The NPRM would abruptly dismantle this longstanding framework without adequately addressing the substantial reliance interests that have developed around it.[32]
Currently, asylum seekers may apply for an initial work permit after their asylum application has been pending for 150 days and USCIS must adjudicate the application within 30 days. The current system provides stability and predictability: when asylum applicants meet the regulatory requirements, USCIS is generally required to grant work authorization barring a major change in circumstance, allowing both workers and employers to plan ahead and rely on a transparent process.[33]
Over time, asylum seekers, their families, employers, and communities have come to rely on this framework. Timely work authorization allows asylum seekers to support themselves, maintain stable housing, and provide for their families while they wait—often for years—for the government to decide their cases. Employers and coworkers across the country also rely on asylum seekers as part of the workforce, and labor unions count asylum seekers amongst their ranks. Today, more than 2.3 million asylum seekers are employed in essential sectors, including industries such as construction and transportation that face persistent labor shortages.[34]
The NPRM upends this system. By dramatically delaying eligibility, creating new barriers, and making EAD approvals entirely discretionary, the NPRM threatens to prevent many asylum seekers from obtaining work authorization at all. Yet DHS offers no meaningful explanation for abandoning the longstanding balance it previously adopted or for disregarding the substantial reliance interests of asylum seekers, employers, and communities across the country.[35]
VI. THE NPRM FAILS TO CONSIDER THE NPRM’S INTERACTION WITH VARIOUS NEW POLICIES RESTRICTING ASYLUM SEEKERS’ ABILITY TO WORK LAWFULLY
The NPRM proposes changes in isolation while ignoring the broader policy landscape. DHS does not meaningfully examine how this NPRM interacts with a series of recent immigration policies that already restrict asylum seekers’ access to work authorization. When considered together, these policies make it extraordinarily difficult, if not impossible, for asylum seekers to seek and maintain work authorization while their asylum claims are pending.[36] These recent policies include, but are not limited to:
- A pause on processing all pending asylum applications and all other immigration benefits (including renewals of asylum-based EADs) for individuals from “high-risk” countries;[37]
- New and increased fees to apply for asylum and asylum-based work permits under the One Big Beautiful Bill Act (“OBBBA”);[38]
- The new OBBBA annual asylum fee;[39]
- The interim final rule eliminating automatic work permit extensions;[40]
- Rules and policies that make it harder for asylum seekers to submit biometrics that are required for obtaining work authorization;[41] and
- Shortened duration of asylum seekers’ work permits from 5 years to 18 months.[42]
Further, the NPRM’s economic and policy analysis is fundamentally outdated because it was conducted before the passage and implementation of the OBBBA.[43] That legislation imposed significant new fees on asylum seekers, including—for the first time—fees for asylum applications and initial work permits. Those provisions have only been in effect for a matter of months, yet DHS now proposes an additional sweeping overhaul of (c)(8) work authorization without allowing sufficient time to observe or evaluate the effects of these major statutory changes. It is difficult to overstate how large of an impact the OBBBA fees have already had on the ability of those fleeing persecution to apply for asylum, and consequently for a work permit. Proceeding with another major regulatory intervention before the impacts of OBBBA can be meaningfully assessed risks compounding barriers to protection based on an incomplete and outdated analysis.
The NPRM adds new obstacles for asylum seekers whose access to work authorization is already severely limited by existing policies and recent legislation, the effects of which the NPRM did not properly analyze. DHS must consider the combined effects of the NPRM and these current policies restricting work permit access, and reverse course to ensure that asylum seekers are not effectively barred from working while they wait—often for years—for their asylum claims to be decided.
VII. THE NPRM WOULD DISPROPORTIONATELY HARM IMMIGRANTS OF COLOR
The NPRM would make it extraordinarily difficult for people to pursue asylum in the United States by denying or delaying access to work authorization—the very mechanism that allows asylum seekers to survive while their claims are pending. Because the U.S. asylum system overwhelmingly serves individuals fleeing persecution in Latin America, the Caribbean, Africa, the Middle East, and Asia,[44] restricting access to asylum in this way disproportionately harms people of color.
The NPRM acknowledges that many of the individuals who would be affected by the extended waiting periods, pauses, and eligibility requirements (including the one-year deadline) for initial asylum-based work permits are not newly arrived asylum seekers, but people who have lived in the United States for years and previously held valid work authorization through parole programs (such as the Cuba, Haiti, Nicaragua, Venezuela (“CHNV”) Parole Program, CBP One, family reunification parole, or other forms of humanitarian parole), Temporary Protected Status (“TPS”), deferred action, or other lawful statuses.[45] Many of these programs—now being dismantled by the current administration—were the primary lawful pathways through which individuals entered or remained in the United States during the prior administration. The NPRM appears designed to target these individuals who entered or remained in the United States through lawful humanitarian pathways in recent years, imposing punitive consequences for seeking asylum after those programs lapse.
Because these populations overwhelmingly originate from countries in Latin America, the Caribbean, and parts of Africa, the Middle East, and Asia—regions that account for a large share of recent asylum applicants—the rule’s practical effect is to disproportionately deny work authorization to Black, Latino, Middle Eastern, and Asian asylum seekers. By erecting barriers that make it economically impossible for applicants to pursue protection, the rule restricts access to the asylum system itself in a way that disproportionately burdens immigrants of color.
VIII. REQUESTED ACTION AND CONCLUSION
For all of these reasons, DHS should withdraw the NPRM in its entirety.
Respectfully submitted,
Immigration & Nationality Committee
Dorian E. Rojas, Co-Chair
Ludivine Van Der Heyden, Co-Chair
Florence Otaigbe, Member
Footnotes
[1] The NPRM lists multiple docket identifying numbers, including DHS Docket No. USCIS-2025-0370, CIS No. 2799-25, DHS Docket No. 2025-0370, and RIN 1615-AC97. We understand that the correct docket number is DHS Docket No. USCIS-2025-0370, but in an abundance of caution and to ensure this comment is properly routed, all of the identifying numbers are listed here.
[1] See “How Does Immigration Affect the US Economy,” Council on Foreign Relations (last accessed April 13, 2026) https://www.cfr.org/articles/how-does-immigration-affect-us-economy. (All websites last accessed April 23, 2026)
[2] 8 CFR 274.a13(C)(3), 91 Fed. Reg. 8616 (Feb. 23, 2026) (DHS Docket No. USCIS-2025-0370).
[3] 8 CFR 274.a13(B)(2)(j), 91 Fed. Reg. 8616 (Feb. 23, 2026) (DHS Docket No. USCIS-2025-0370).
[4] See 8 CFR §§ 274a.12(c)(8); 208.7(a).
[5] See Gonzalez Rosario v. USCIS, 365 F. Supp. 3d 1156 (W.D. Wash. 2018) (enjoining USCIS from further failing to adhere to the 30-day deadline for adjudicating EAD applications for asylum applicants).
[6] Rules and Procedures for Adjudication of Applications for Asylum or Withholding of Deportation and for Employment Authorization, 59 Fed. Reg. 14,779, 14,780 (proposed Mar. 30, 1994) (describing 150 days “as the period beyond which it would not be appropriate to deny work authorization to a person whose [asylum] claim has not been adjudicated”).
[7] 91 Fed. Reg. at 8619–20, 8699 (“USCIS will have 180 days to adjudicate an initial application for employment authorization, except for those applications requiring additional review for background checks or vetting.”).
[8] 8 CFR 274.a13(V)A), 91 Fed. Reg. 8616 (Feb. 23, 2026) (DHS Docket No. USCIS-2025-0370).
[9] 91 Fed. Reg. at 8619–20, 8699 at 8618–19.
[10] Id. These provisions also provide for limited exceptions.
[11] See also id. at 8658 (“DHS acknowledges that requiring EAD adjudicators to consider new eligibility requirements that are also analyzed in the asylum interview will likely increase the time needed to process (c)(8) employment authorization applications and could be viewed as contradictory to stated efficiency goals.”).
[12] See 8 CFR 274.a13(a)(1) (“The approval of applications filed under 8 CFR 274.a12(c), except for 8 CFR 274a.12(c)(8), are within the discretion of USCIS.” (emphasis added)).
[13] 91 Fed. Reg. at 8619.
[14] Id.
[15] Id. at 8655.
[16] 18 CFR 274.a13(2)(i)) 91 Fed. Reg. 8616 (Feb. 23, 2026) (DHS Docket No. USCIS-2025-0370).
[17] Id. at 8618.
[18] Id. at 8617.
[19] See “High Stakes Asylum: How Long an Asylum Case Takes and Why We Can Do Better,” https://www.aila.org/library/high-stakes-asylum-how-long-an-asylum-case-takes (“For an asylum seeker whose cases is before USCIS, wait times have grown to more than six years.”)
[20] Id. at 8629 (“Due to this rule and the increased waiting periods before [a noncitizen] may receive employment authorization, there may be [noncitizens] with potentially meritorious claims who instead return to a country where they may fear harm.”).
[21] Courts may set aside agency action as arbitrary and capricious if the agency has “entirely failed to consider an important aspect of the problem,” Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983), which includes harms to immigrants and asylum seekers, see, e.g., Casa de Md., Inc. v. Wolf, 486 F. Supp. 3d 928, 965 (D. Md. 2020); N.W. Immigrant Rts. Project v. U.S. Citizenship and Immigr. Servs., 496 F. Supp. 3d 31, 76–78 (D.D.C. 2020); Immigrant Legal Res. Ctr. v. Wolf, 491 F. Supp. 3d 520, 541 (N.D. Cal. 2020).
[22] 91 Fed Reg. at 8621.
[23] The NPRM’s economic analysis significantly understates the broader economic impact because it does not account for lost productivity in industries facing persistent labor shortages; costs to businesses that rely on asylum seekers as employees; costs to employers from hiring and training replacement workers; reduced tax contributions; or the broader economic ripple effects of removing workers from the lawful work force. The NPRM assumes that lost wages could simply transfer to other workers if replacement labor is available. But it does not analyze whether such replacement labor exists in sectors already experiencing labor shortages. The NPRM also fails to quantify the loss of tax revenue resulting from reduced employment, even while acknowledging that tax impacts are likely. The NPRM’s economic impact analysis also appears outdated, having been conducted in April and May 2025. See 91 Fed. Reg. at 8677–94.
[24] See, e.g., Sandra Sanchez, Asylum-seekers worry over potential changes to work permit rules, Border Report (June 6, 2025), https://www.borderreport.com/hot-topics/immigration/asylum-seekers-worry-over-potential-changes-to-work-permit-rules/; Kate Goettel, Failure to Reauthorize Employment Harms Asylum Seekers and the U.S. Economy, Am. Immigr. Council (Nov. 12, 2021), https://www.americanimmigrationcouncil.org/blog/employment-delays-asylum-seekers-economy/ (“[L]ack of work authorization acutely affects these asylum seekers’ ability to support themselves and their families, putting them in financial peril.”); At Least Let Them Work: The Denial of Work Authorization and Assistance for Asylum Seekers in the United States, Hum. Rts. Watch (Nov. 12, 2013), https://www.hrw.org/report/2013/11/12/least-let-them-work/denial-work-authorization-and-assistance-asylum-seekers-united (“It is often very difficult for asylum seekers who are barred from work authorization to find accommodation because they cannot legally make enough money to pay for housing and transportation. . . . Asylum seekers who are barred from work authorization and not assisted by friends, families, or organizations are often unable to purchase food.”).
[25] See Obtaining an Employment Authorization Document, Immigr. Equal, https://immigrationequality.org/asylum/asylum-manual/obtaining-an-employment-authorization-document/ (“Many asylees still apply for and obtain EADs, however, because they are a good form of identification to have, and may be necessary in order to obtain other identification such as state issued drivers’ licenses or identification cards.”).
[26] See At Least Let Them Work: The Denial of Work Authorization and Assistance for Asylum Seekers in the United States, Hum. Rts. Watch (Nov. 12, 2013), https://www.hrw.org/report/2013/11/12/least-let-them-work/denial-work-authorization-and-assistance-asylum-seekers-united (detailing the stores of two asylum seekers without work authorization who were forced into exploitative living conditions); id. (“Forcing asylum seekers to rely on others for subsistence permits, and even encourages, abusive and exploitive relationships”).
[27] See id.
[28] See, e.g., CASA de Md., Inc., 486 F. Supp. 3d at 966 (“It is axiomatic that without being able to work, asylum applicants lack the resources to pursue their claims.”); Grijalva v. Ilchert, 815 F. Supp. 328, 332 (N.D. Cal. 1993) (noting that a noncitizen “who is wrongfully denied employment authorization is compelled to rely on friends and relatives for support, to work illegally and risk deportation or adverse action on his asylum application, or, ultimately, to abandon his application for asylum”); Ramos v. Thornburgh, 732 F. Supp. 696, 700 (E.D. Tex. 1989) (“[T]he inability to work for the extended period . . . may compel an applicant to abandon his or her asylum application . . . [and] subject the applicant to even more severe persecution upon return to the country he or she has attempted to flee.”); United States v. Bazargan, 992 F.2d 844, 848 (8th Cir. 1993) (noting that an EAD application based on a pending asylum application “is granted routinely, to avoid creating a situation in which the [asylum seeker] must choose either to rely ‘on friends and relatives for support, to work illegally and risk deportation or adverse action on his asylum application, or, ultimately, to abandon his application for asylum’” (quoting Ramos, 732 F. Supp. at 699)); cf. Nat’l Ctr. for Immigrants Rts., Inc. v. Immigr. and Naturalization Serv., 743 F.2d 1365, 1369 (9th Cir. 1984) (“The hardship [to immigrants] from being unable to work to support themselves and their dependents, . . . and to pay for legal representation is beyond question.”).
[29] See, e.g., Karen Berberich et al., Advancing Universal Representation: A Toolkit Module 1: The Case for Universal Representation, Vera Inst., at 2 (Dec. 2018), https://vera-institute.files.svdcdn.com/production/downloads/pdfdownloads/advancing-universal-representation-toolkit-mod1.pdf?dm=1613505619 (explaining the importance of access to counsel in removal proceedings and noting that “only 5 percent of those who won relief between 2007 and 2012 did so without an attorney”).
[30] See Lisa Fernandez, Trump has a new deportation strategy: fast-tracking third-country removals, FOX KTVU (Dec. 15, 2025), https://www.ktvu.com/news/trump-deportation-third-country-removals.
[31] See Rules and Procedures for Adjudication of Applications for Asylum or Withholding of Deportation and for Employment Authorization, 59 Fed. Reg. 62,284 (Dec. 5, 1994).
[32] See FCC v. Fox Television Studios, Inc., 556 U.S. 502, 515–16 (2009) (noting that an agency must sufficiently explain its decision when it departs from a previous position, which requires a “reasoned explanation” as to why it is “disregarding” any “factual findings . . . which underlay its prior policy” and “contradict” the factual findings underlying its new policy).
[33] See 8 CFR 274.a13(a)(1) (“The approval of applications filed under 8 CFR 274.a12(c), except for 8 CFR 274a.12(c)(8), are within the discretion of USCIS.”)
[34] See fwd.us, People seeking asylum are contributing to the workforce (Jan. 31, 2026), https://www.fwd.us/news/people-seeking-asylum-are-contributing-to-the-workforce/.
[35] See 91 Fed. Reg. at 8629–30.
[36] See Casa de Md.,486 F. Supp. 3d at 965 (faulting USCIS for not addressing the economic harm to asylum seekers where a virtually identical set of “rules work[ed] together to erect a series of procedural and financial barriers that render nearly impossible pre-asylum work authorization”).
[37] U.S. Citizenship & Immigr. Servs., PM-602-0192, Hold and Review of all Pending Asylum Applications and all USCIS Benefit Applications Filed by Aliens from High-Risk Countries (Dec. 2, 2025).
[38] Applying for asylum now carries a $100 initial fee and a further $100 fee each year the applicant waits for an adjudication, and both fees are subject to an annual inflation adjustment and may not be waived. See 8 U.S.C. §§ 1802, 1808. Starting on July 22, 2025, it costs $550 to apply for an initial work permit as an asylum seeker. See 8 U.S.C. § 1803(a). Before, there was no fee. In addition, starting on July 22, 2025, the cost for an asylum seeker to renew their work permit increased by $275. Id. § 1810(a); U.S. Citizenship & Immigr. Servs., G-1055, Fee Schedule, Select a Form for Fee Information: I-765, Application for Employment Authorization, https://www.uscis.gov/g-1055?form=i-765 (providing that asylum applicants must pay the following fees to renew their work permits: $520 plus additional fee of $275 for applications submitted by mail; and $470 plus additional fee of $275 for applications submitted online).
[39] See 8 U.S.C. § 1808.
[40] Removal of the Automatic Extension of Employment Authorization Documents, 90 Fed. Reg. 48,799 (Oct. 30, 2025).
[41] See, e.g., Collection and Use of Biometrics by U.S. Citizenship and Immigration Services, 90 Fed. Reg. 49,062 (Nov. 3, 2025) (expanded biometrics requirements); Collection of Biometric Data From Aliens Upon Entry to and Departure From the United States, 90 Fed. Reg. 48,604 (Oct. 27, 2025) (expanded entry/exit biometrics); U.S. Citizenship & Immigr. Servs., Policy Alert PA-2025-28: Clarifying Biometrics for Individuals in Custody (Dec. 5, 2025) (limits biometrics for detainees); U.S. Citizenship & Immigr. Servs., Policy Manual Update: Photo Validity Requirements (Dec. 12, 2025) (restricts photo reuse and self-taken photos).
[42] U.S. Citizenship & Immigr. Servs., Policy Alert PA-2025-27: Updating Certain Employment Authorization Document Validity Periods at 2 (Dec. 4, 2025) (“Updates the maximum validity period for initial and renewal EADs from 5 years to 18 months for those admitted as refugees, granted asylum, granted withholding of deportation or removal, for those with pending applications for asylum or withholding of removal[.]”).
[43] See, e.g., 91 Fed. Reg. at 8677 & n.305 (acknowledging that the data DHS relied on to “support the economic impact estimates for this proposed rule” only extend through March 2025); id. at 8693 (relying on unemployment and job openings data from April 2025); id. at 8678 (“source” for Table 8 analyzing impacted populations is dated April 2, 2025); id. at 8680–86 (impact estimation analyses for the proposed rule, reflected in Tables 9, 10, 11, and 12, were conducted on May 23, 2025); id. at 8687–89 (Table 13 earning and net filing impact analysis was conducted on April 21, 2025); id. at 8690–92 (Table 14 estimated tax impacts analysis was conducted on April 7, 2025); id. at 8693 & n. 322 (using April 2025 unemployment and job openings data); id. at 8694 (using February 2025 estimates of U.S. labor force and 2025 General Services Administration mileage reimbursement rate).
[44] See, e.g., Jeanne Batalova, Refugees and Asylees in the United States, Migration Pol’y Inst. (Jan. 8, 2026), https://www.migrationpolicy.org/article/refugees-and-asylees-united-states (Top countries of origin for asylees in FY 2023 include: Afghanistan, China, Venezuela, El Salvador, India, Guatemala, Honduras, Russia, Turkey, and Colombia).
[45] See 91 Fed. Reg. at 8652–53 (acknowledging former TPS, CHNV parole, and Deferred Action for Childhood Arrivals holders often apply for asylum.