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The Department of Homeland Security (DHS) proposes to withdraw its regulatory provision stating U.S. Citizenship and Immigration Services (USCIS) has 30 days from the date an asylum applicant files the initial Application for Employment Authorization (Form I-765 or EAD application) to grant or deny that application. By eliminating the 30-day provision, DHS will be able to maintain realistic case processing times for initial EAD applications for pending asylum applicants, respond to national security and fraud concerns, maintain technological advances in document production, and address identity verification considerations. Pursuant to current 8 CFR 274a.13(d), DHS also proposes to make a technical amendment by deleting the provision requiring pending asylum applicants to submit Form I-765 renewal applications 90 days before their employment authorization expires.

Statement of Need:

The purpose of these changes is to ensure that DHS would be able to better manage its case processing times for initial EAD applications for pending asylum applicants, to address national security and fraud concerns, and to maintain technological advances in document production and identity verification that USCIS must fulfill as a part of its core mission within DHS. The technical amendment is intended to align existing regulatory text with DHS policies implemented under the Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers final rule, 82 FR 82398, 82457 (2017 AC21 Rule).

Summary of the Legal Basis:

The Immigration and Nationality Act (INA) section 208(d)(2), 8 U.S.C. 1158(d)(2), provides the Attorney General with authority to provide employment authorization to applicants for asylum by establishing regulations. The statute also states such applicants may not be granted asylum application-based employment authorization prior to 180 days after filing of the application for asylum. DHS has created regulations codifying employment authorization application procedures, and is proposing modifications, specifically for applicants with pending asylum applications.

Alternatives:

DHS is considering an alternative to the proposed removal of the 30-day timeframe to instead extend the regulatory timeframe to 90 days.

Anticipated Costs and Benefits:

DHS anticipates this rule would include both distributional effects (which are transfers) and costs. USCIS does not know the portion of overall impacts of this rule that are transfers or costs, but estimates that the maximum monetized impact of this rule is approximately $880 million annually. DHS does not anticipate any costs to applicants or the government by removing the 30-day processing provision or the 90-day submission requirement for renewal EADs. The anticipated benefits of this rule include increasing consistency across EAD regulations and thus reducing confusion for applicants; enabling DHS to operate under sustainable case processing times for initial EAD applications for pending asylum applicants; allowing sufficient time to address national security and fraud concerns; and maintaining technological advances in document production and identity verification.

Risks: