[Federal Register Volume 84, Number 220 (Thursday, November 14, 2019)]
[Proposed Rules]
[Pages 62374-62424]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-24293]



[[Page 62373]]

Vol. 84

Thursday,

No. 220

November 14, 2019

Part IV





Department of Homeland Security





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8 CFR Parts 208 and 274a





Asylum Application, Interview, and Employment Authorization for 
Applicants; Proposed Rule

Federal Register / Vol. 84 , No. 220 / Thursday, November 14, 2019 / 
Proposed Rules

[[Page 62374]]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 208 and 274a

[CIS No. 2648-19; DHS Docket No. USCIS-2019-0011]
RIN 1615-AC27


Asylum Application, Interview, and Employment Authorization for 
Applicants

AGENCY: Department of Homeland Security.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The U.S. Department of Homeland Security (DHS) is proposing to 
modify its current regulations governing asylum applications, 
interviews, and eligibility for employment authorization based on a 
pending asylum application.

DATES: Written comments and related material to this proposed rule, 
including the proposed information collections, must be received to the 
online docket via www.regulations.gov, or to the mailing address listed 
in the ADDRESSES section below, on or before January 13, 2020.

ADDRESSES: You may submit comments on this proposed rule using one of 
the following methods:
     Federal eRulemaking Portal [preferred]: http://www.regulations.gov. Follow the website instructions for submitting 
comments.
     Mail: Samantha Deshommes, Chief, Regulatory Coordination 
Division, Office of Policy and Strategy, U.S. Citizenship and 
Immigration Services, Department of Homeland Security, 20 Massachusetts 
Avenue NW, Washington, DC 20529. To ensure proper handling, please 
reference DHS Docket No. USCIS-2019-0011 in your correspondence. Mail 
must be postmarked by the comment submission deadline.

FOR FURTHER INFORMATION CONTACT: Maureen Dunn, Chief, Division of 
Humanitarian Affairs, Office of Policy and Strategy, U.S. Citizenship 
and Immigration Services, Department of Homeland Security, 20 
Massachusetts Avenue NW, Suite 1100, Washington, DC 20529-2140; 
Telephone (202) 272-8377.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Public Participation
II. Executive Summary
    A. Major Provisions of the Regulatory Action
    B. Summary of Costs and Benefits, and Transfer of Payment
III. Purpose of the Proposed Rule
    A. Efforts To Reform the Asylum System
    B. Need for Reform
IV. Background
    A. Legal Authority
    B. Eligibility for Asylum
    C. Affirmative vs. Defensive Asylum Filings
    D. Employment Authorization for Asylees and Asylum Applicants
    E. Asylum and EAD Adjudications
V. Discussion of the Proposed Rule
    A. 365-Day Waiting Period To Apply for Asylum-Application-Based 
EADs
    B. One-Year Filing Deadline
    C. Criminal Bars to Eligibility
    D. Procedural Reforms
    E. Termination of Employment Authorization
    1. Denial of Asylum Application by USCIS Asylum Officer
    2. Termination After Denial by IJ
    3. Automatic Extensions of Employment Authorizations and 
Terminations
    F. Aliens Who Have Established Credible or Reasonable Fear of 
Persecution or Torture and Who Have Been Paroled Into the United 
States
    G. Illegal Entry
    H. Effective Date of the Final Rule
VI. Statutory and Regulatory Requirements
    A. Executive Orders 12866 (Regulatory Planning and Review) and 
13563 (Improving Regulation and Regulatory Review)
    1. Summary
    2. Background and Purpose of Rule
    3. Population
    4. Transfers, Costs, and Benefits of This Proposed Rule
    B. Regulatory Flexibility Act (RFA)
    C. Congressional Review Act
    D. Unfunded Mandates Reform Act of 1995 (UMRA)
    E. Executive Order 13132 (Federalism)
    F. Executive Order 12988 (Civil Justice Reform)
    G. Executive Order 13175 (Consultation and Coordination With 
Indian Tribal Governments)
    H. Family Assessment
    I. National Environmental Policy Act (NEPA)
    J. National Technology Transfer and Advancement Act
    K. Executive Order 12630 (Governmental Actions and Interference 
With Constitutionally Protected Property Rights)
    L. Executive Order 13045 (Protection of Children From 
Environmental Health Risks and Safety Risks)
    M. Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use)
    N. Paperwork Reduction Act (PRA)

Table of Abbreviations

ASC--Application Support Center
BCR--Biometrics Collection Rate
BFR--Biometrics Fee Ratio
BIA--Board of Immigration Appeals
BLS--Bureau of Labor Statistics
CAT--Convention Against Torture and Other Cruel, Inhuman or 
Degrading Treatment or Punishment
CBP--U.S. Customs and Border Protection
CFR--Code of Federal Regulations
CPMS--Customer Profile Management System
DHS--U.S. Department of Homeland Security
DOJ--Department of Justice
DOS--Department of State
E.O.--Executive Order
EAD--Employment Authorization Document
EOIR--Executive Office for Immigration Review
FBI--Federal Bureau of Investigation
FDNS--Fraud Detection and National Security Directorate
FIFO--First In/First Out
Form I-589--Application for Asylum and for Withholding of Removal
Form I-765--Application for Employment Authorization
Form I-863--Notice of Referral to Immigration Judge
FY--Fiscal Year
GSA--General Services Administration
HSA--Homeland Security Act of 2002
ICE--U.S. Immigration and Customs Enforcement
IIRIRA--Illegal Immigration Reform and Immigrant Responsibility Act 
of 1996
INA--Immigration and Nationality Act
IRCA--Immigration Reform and Control Act of 1986
INS--Immigration and Naturalization Service
LCA--Labor Condition Application
LIFO--Last In, First Out
NEPA--National Environmental Policy Act
NTA--Notice to Appear
OMB--Office of Management and Budget
PM--Presidential Memorandum
PRA--Paperwork Reduction Act
RFA--Regulatory Flexibility Act
Secretary--Secretary of Homeland Security
UMRA--Unfunded Mandates Act of 1995
U.S.C.--United States Code
USCIS--U.S. Citizenship and Immigration Services

I. Public Participation

    All interested parties are invited to participate in this 
rulemaking by submitting written data, views, comments, and arguments 
on all aspects of this proposed rule. DHS also invites comments that 
relate to the economic, legal, environmental, or federalism effects 
that might result from this proposed rule. Comments must be submitted 
in English or include an English translation. Comments that will 
provide the most assistance to DHS in implementing these changes will 
reference a specific portion of the proposed rule, explain the reason 
for any recommended change, and include data, information, or authority 
that supports such recommended change.
    Instructions: If you submit a comment, you must include the agency 
name (U.S. Citizenship and Immigration Services) and the DHS Docket No. 
USCIS-2019-0011 for this rulemaking. Please note that DHS has published 
a notice of proposed rulemaking (NPRM)

[[Page 62375]]

entitled ``Removal of 30-Day Processing Provision for Asylum Applicant-
Related Form I-765 Employment Authorization Applications,'' DHS Docket 
No. USCIS-2018-0001, separate from this NPRM. The two NPRMs include 
distinct proposals, and for this proposed rule, DHS will only consider 
comments submitted to Docket No. USCIS-2019-0011. Please ensure that 
you submit your comments to the correct docket.
    Regardless of the method used for submitting comments or material, 
all submissions will be posted, without change, to the Federal 
eRulemaking Portal at http://www.regulations.gov, and will include any 
personal information you provide. Therefore, submitting this 
information makes it public. You may wish to consider limiting the 
amount of personal information that you provide in any voluntary public 
comment submission you make to DHS. DHS may withhold information 
provided in comments from public viewing that it determines may impact 
the privacy of an individual or is offensive. For additional 
information, please read the Privacy Act notice that is available via 
the link in the footer of http://www.regulations.gov.
    Docket: For access to the docket and to read background documents 
or comments received, go to http://www.regulations.gov, referencing DHS 
Docket No. USCIS-2019-0011. You may also sign up for email alerts on 
the online docket to be notified when comments are posted or a final 
rule is published.

II. Executive Summary

    DHS seeks to reduce incentives for aliens to file frivolous, 
fraudulent, or otherwise non-meritorious asylum applications to obtain 
employment authorization filed by asylum applicants seeking an 
employment authorization document pursuant to 8 CFR 274a.12(c)(8) 
(hereinafter ``(c)(8) EAD'' or ``EAD'') or other non-asylum-based forms 
of relief such as cancellation of removal, and to discourage illegal 
entry into the United States. DHS also seeks to reduce incentives for 
aliens to intentionally delay asylum proceedings in order to extend the 
period of employment authorization based on the pending application, 
and to simplify the adjudication process. DHS seeks to prevent those 
asylum applicants who have committed certain crimes from obtaining a 
(c)(8) employment authorization document, and to make the decision to 
grant (c)(8) employment authorization to asylum applicants 
discretionary, in line with USCIS' statutory authority.
    DHS is proposing to modify its current regulations governing asylum 
applications, interviews, and eligibility for employment authorization 
based on a pending asylum application. DHS proposes to modify its 
regulations in the following areas:
     Extend the waiting period to apply for employment 
authorization: DHS proposes that asylum applicants wait 365 calendar 
days from the date their asylum applications are received by USCIS or 
the Department of Justice, Executive Office for Immigration Review 
(DOJ-EOIR) before they may apply for and receive an EAD. DHS also 
proposes that USCIS will deny (c)(8) EAD applications if there are any 
unresolved applicant-caused delays on the date of the EAD adjudication.
     Eliminate the issuance of recommended approvals for a 
grant of affirmative asylum: DHS proposes that USCIS will no longer 
issue recommended approvals for asylum. These are typically cases where 
an asylum officer has made a preliminary determination to grant asylum 
but has not yet received the results of the mandatory, confidential 
investigation of the alien's identity and background.
     Revise eligibility for employment authorization: DHS 
proposes to exclude aliens who, absent good cause, entered or attempted 
to enter the United States at a place and time other than lawfully 
through a U.S. port of entry from eligibility for (c)(8) employment 
authorization. DHS also proposes to exclude from eligibility for 
employment authorization aliens who have failed to file for asylum 
within one year of their last entry, unless and until an asylum officer 
or Immigration Judge (IJ) determines that an exception to the statutory 
requirement to file for asylum within one year applies. Because the 
one-year filing deadline does not apply to unaccompanied alien 
children, under this proposal, the one-year filing deadline would not 
exclude unaccompanied alien children from eligibility to obtain an 
employment authorization document. DHS also proposes to exclude from 
eligibility aliens whose asylum applications have been denied by an 
asylum officer or an IJ during the 365-day waiting period or before the 
request for initial employment authorization has been adjudicated. DHS 
further proposes to exclude from eligibility for employment 
authorization aliens who have: (1) Been convicted of any aggravated 
felony as defined under section 101(a)(43) of the INA, 8 U.S.C. 
1101(a)(43), (2) been convicted of any felony in the United States or 
serious non-political crime outside the United States or (3) been 
convicted of certain public safety offenses in the United States. If an 
applicant has unresolved domestic arrests or pending charges involving 
domestic violence, child abuse, possession or distribution of 
controlled substances,\1\ or driving under the influence of drugs or 
alcohol, USCIS will decide at its discretion if it will grant the 
applicant employment authorization, based on the totality of the 
circumstances. DHS seeks public comment on whether these and additional 
crimes should be included as bars to employment authorization. DHS also 
proposes to make the decision to grant (c)(8) employment authorization 
discretionary to align with the discretionary authority Congress 
conferred in INA 208(d)(2), 8 U.S.C. 1158(d)(2). DHS is also clarifying 
that only applicants for asylum who are located in the United States 
may apply for employment authorization. DHS is adding a severability 
clause in the event that, for whatever reason, any of the provisions 
are not implemented.
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    \1\ See section 102 of the Controlled Substances Act (21 U.S.C. 
802).
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     Revise the provisions for EAD termination: DHS proposes 
revising when (c)(8) employment authorization terminates. DHS proposes 
that when a USCIS asylum officer denies an alien's request for asylum, 
any employment authorization associated with a pending asylum 
application will be terminated effective on the date of asylum 
application denial. If a USCIS asylum officer determines that the alien 
is not eligible for asylum, the asylum officer will typically refer the 
case to DOJ-EOIR. DHS proposes that if USCIS refers a case to DOJ-EOIR, 
employment authorization would continue, and the alien would be 
eligible to continue applying for EAD renewals, if needed, until the IJ 
renders a decision on the asylum application. If the IJ denies the 
asylum application, the alien's employment authorization would 
terminate 30 days after denial, unless the alien filed a timely appeal 
with the Board of Immigration Appeals (BIA). Renewal of employment 
authorization would be available to the alien during the pendency of 
the appeal to the BIA. DHS, however, would prohibit employment 
authorization during the Federal court appeal process, but the alien 
could reapply for a (c)(8) EAD if the Federal court remanded the asylum 
case to BIA.
     Change provisions for filing an asylum application: DHS 
proposes to remove the requirement that USCIS return an incomplete 
application within 30 days or have it deemed complete for

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adjudication purposes. DHS also proposes that amending an asylum 
application, requesting an extension to submit additional evidence 
beyond a time that allows for its meaningful consideration prior to the 
interview, or failing to appear to receive a decision as designated, 
will constitute an applicant-caused delay, which, if not resolved by 
the date the application for employment authorization is adjudicated, 
will result in the denial of that employment authorization application. 
DHS also is clarifying the effect of an applicant's failure to appear 
for either an asylum interview or a scheduled biometric services 
appointment on a pending asylum application.
     Limit EAD validity periods: DHS proposes to clarify that 
the validity period of (c)(8) employment authorization is discretionary 
and further proposes that any (c)(8) EAD validity period, whether 
initial or renewal, will not exceed increments of two years. USCIS may 
set shorter validity periods for initial and renewal (c)(8) EADs.
     Incorporate biometrics collection requirements into the 
employment authorization process for asylum seekers: DHS proposes to 
incorporate biometrics collection into the employment authorization 
process for asylum applicants, which would require applicants to appear 
at an Application Support Center (ASC) for biometrics collection and 
pay a biometric services fee. At present, biometrics collection 
generally refers to the collection of fingerprints, photographs, and 
signatures.\2\ Such biometrics collection will allow DHS to submit a 
(c)(8) applicant's fingerprints to the Federal Bureau of Investigation 
(FBI) for a criminal history check, facilitate identity verification, 
and facilitate (c)(8) EAD card production. DHS will require applicants 
with a pending initial or renewal (c)(8) EAD on the effective date of 
this rule to appear at an ASC for biometrics collection but DHS will 
not collect the biometrics services fee from these aliens. DHS will 
contact applicants with pending applications and provide notice of the 
place, date and time of the biometrics appointment.
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    \2\ See https://www.uscis.gov/forms/forms-information/preparing-your-biometric-services-appointment (describing biometrics as 
including fingerprints, photographs, and digital signature) (last 
visited July 11, 2019).
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     Clarify employment authorization eligibility for aliens 
who have been paroled after being found to have a credible or 
reasonable fear of persecution or torture: DHS is clarifying that 
aliens who have been paroled after establishing a credible fear or 
reasonable fear of persecution or torture under 8 CFR 208.30 may not 
request a discretionary grant of employment authorization under 8 CFR 
274a.12(c)(11), but may still apply for a (c)(8) EAD, if eligible. DHS 
seeks public comment on this proposal and whether the (c)(11) category 
(parole-based EADs) should be further limited, such as to provide 
employment authorization only to those DHS determines are needed for 
foreign policy, law enforcement, or national security reasons, 
especially since parole is meant only as a temporary measure to allow 
an alien's physical presence in the United States until the need for 
parole is accomplished or the alien can be removed.
    Specify the effective date: DHS proposes to apply changes made by 
this rule only to initial and renewal applications for employment 
authorization under 8 CFR 274a.12(c)(8) and (c)(11) filed on or after 
the effective date of the final rule, with limited exceptions. DHS will 
apply two of the proposed ineligibility provisions--those relating to 
criminal offenses and failure to file the asylum application within one 
year of the alien's last entry to the US--to initial and renewal 
applications for employment authorization applications pending on the 
effective date of the final rule. In order to implement the criminal 
ineligibility provision, DHS will require applicants with an initial or 
renewal (c)(8) EAD application pending on the effective date of this 
rule to appear at an ASC for biometrics collection but DHS will not 
collect the biometrics services fee from these aliens. DHS will contact 
applicants with pending applications and provide notice of the place, 
date and time of the biometrics appointment. If applicable, initial 
applications filed before the effective date of this rule by members of 
the Rosario class will not be subject to any of the provisions of this 
proposed rule.\3\ DHS seeks public comment on whether other aliens, 
such as those affected by the Settlement Agreement in American Baptist 
Churches v. Thornburgh, 760 F. Supp. 796 (N.D.Cal.1991), or those whose 
asylum applications predate the 1995 asylum reforms, should be subject 
to all, some or none of the provisions in this rule.
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    \3\ On May 22, 2015, plaintiffs in Rosario v. USCIS, No. C15-
0813JLR (W.D. Wash.), brought a class action in the U.S. District 
Court for the Western District of Washington to compel USCIS to 
comply with the 30-day provision of 8 CFR 208.7(a)(1). On July 26, 
2018, the court enjoined USCIS from further failing to adhere to the 
30-day deadline for adjudicating EAD applications. DHS published a 
proposed rule to remove this timeframe on September 9, 2019, where 
it proposed to grandfather into the 30-day adjudication timeframe 
those class members who filed their initial EAD applications prior 
to the effective date of any final rule that changes the 30-day DHS 
timeline. To ensure compliance with the court order and consistency 
with the 30-day proposed rule, USCIS further proposes not to apply 
this rule to any initial EAD application filed by a Rosario class 
member that is pending as of the effective date of this rule, so 
long as the Rosario injunction remains in effect. USCIS has not 
included proposed regulatory text to this effect, but would include 
such text in the event that members of the Rosario class remain as 
of the date of publication of a final rule.
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    DHS is updating the regulations to reflect the amendments made by 
this proposed rule, and proposing revisions to existing USCIS 
information collections to accompany the proposed regulatory changes.

A. Major Provisions of the Regulatory Action

    DHS proposes to include the following major changes:
     Amending 8 CFR 208.3, Form of application. The amendments 
to this section propose to remove the language providing that an 
application for asylum will automatically be deemed ``complete'' if 
USCIS fails to return the incomplete application to the alien within a 
30-day period. This provision is inconsistent with how all other 
applications and petitions for immigration benefits are treated, 
creates an arbitrary circumstance for treating a potentially incomplete 
asylum application as complete, and imposes an unnecessary 
administrative burden on USCIS. DHS proposes to conform its current 
process for determining when an asylum application is received and 
complete to the general rules governing all other immigration benefits 
under 8 CFR 103.2, in addition to the specific asylum rules under 8 CFR 
208.3 and 208.4. The regulations at 8 CFR 103.2(a)(7) state that USCIS 
will record the receipt date as of the actual date the benefit request 
is received at the designated filing location, whether electronically 
or in paper, provided that it is signed with a valid signature, 
executed, and filed in compliance with the regulations governing that 
specific benefit request. If a fee is required, the benefit request 
must also include the proper fee. Benefit requests not meeting these 
acceptance criteria are rejected at intake. Rejected benefit requests 
do not retain a filing date.
     Amending 8 CFR 208.4, Filing the application. The proposed 
amendments to this section provide that a request to amend a pending 
application for asylum or to supplement such an application may be 
treated as an applicant-caused delay, and if unresolved on the date the 
employment authorization application

[[Page 62377]]

is adjudicated, will result in the denial of the application for 
employment authorization.
     Amending 8 CFR 208.7, Employment authorization.\4\
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    \4\ DHS has published a notice of proposed rulemaking (NPRM) 
entitled ``Removal of 30-Day Processing Provision for Asylum 
Applicant-Related Form I-765 Employment Authorization 
Applications,'' DHS Docket No. USCIS-2018-0001, separate from this 
NPRM, which addresses application processing times. Processing times 
are therefore not addressed here.
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    [cir] Jurisdiction. The proposed amendments to this section clarify 
that USCIS has jurisdiction over all applications for employment 
authorization based on pending or approved applications for asylum.
    [cir] 365-day Waiting Period. The proposed amendments to this 
section also replace the 150-day waiting period and the 180-day asylum 
EAD clock. The proposed amendments will make asylum applicants eligible 
to apply for employment authorization 365 calendar days from the date 
their asylum application is received. The 365-day period was based on 
an average of the current processing times for asylum applications 
which can range anywhere from six months to over 2 years, before there 
is an initial decision, especially in cases that are referred to DOJ-
EOIR from an asylum office. The amendments propose that if any 
unresolved applicant-caused delays in the asylum adjudication exist on 
the date the (c)(8) EAD application is adjudicated, the EAD application 
will be denied. Consistent with the current regulation, DHS also 
proposes to exclude from eligibility aliens whose asylum applications 
have been denied by an asylum officer or an IJ during the waiting 
period of at least 365-days or before the adjudication of the initial 
request for employment authorization.
    [cir] One Year Filing Deadline. The proposed amendments to this 
section also exclude from eligibility for employment authorization 
aliens who have failed to file for asylum within one year unless and 
until an asylum officer or IJ determines that an exception to the 
statutory requirement to file for asylum within one year applies.
    [cir] Illegal Entry. The proposed amendments to this section also 
make any alien who entered or attempted to enter the United States at a 
place and time other than lawfully through a U.S. port of entry 
ineligible to receive a (c)(8) EAD, with limited exceptions.
    [cir] Criminal convictions. The rule proposes amendments to this 
section include excluding from (c)(8) EAD eligibility any alien who has 
(1) been convicted of an aggravated felony as described in section 
101(a)(43) of the INA, 8 U.S.C. 1101(a)(43), (2) been convicted of any 
felony \5\ in the United States, (3) been convicted of a serious non-
political crime outside the United States, (4) been convicted in the 
United States of domestic violence or assault (except aliens who have 
been battered or subjected to extreme cruelty and who were not the 
primary perpetrators of violence in their relationships), child abuse 
or neglect; possession or distribution of controlled substances; or 
driving or operating a motor vehicle under the influence of alcohol or 
drugs, regardless of how the offense is classified by the state, local, 
or tribal jurisdiction. USCIS will consider, on a case-by-case basis, 
whether an alien who has unresolved domestic charges or arrests that 
involve domestic violence, child abuse, possession or distribution of 
controlled substances, or driving under the influence of drugs or 
alcohol, warrant a favorable exercise of discretion for a grant of 
employment authorization.
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    \5\ See 18 U.S.C. 3156(a)(3) (the term ``felony'' means an 
offense punishable by a maximum term of imprisonment of more than 
one year).
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    [cir] Recommended Approvals. The proposed amendments to this 
section also remove the language referring to ``recommended 
approvals.'' Under this proposal, USCIS would no longer issue grants of 
recommended approvals as a preliminary decision for affirmative asylum 
adjudications.
    [cir] EAD Renewals. The proposed amendments would permit renewals 
during the pendency of the asylum application, including in immigration 
court and at the BIA, for such periods as determined by USCIS in its 
discretion, but not to exceed increments of two years.
    [cir] Submission of biometrics. The proposed amendments would 
require applicants to submit biometrics at a scheduled biometrics 
services appointment for all initial and renewal applications for 
employment authorization. DHS will require applicants with a pending 
initial or renewal (c)(8) EAD on the effective date of this rule to 
appear at an ASC for biometrics collection but DHS will not collect the 
biometrics services fee from these aliens. DHS will contact applicants 
with pending applications and provide notice of the place, date and 
time of the biometrics appointment.
    [cir] Termination After Denial by USCIS Asylum Officer. The 
proposed amendments to this section provide that when a USCIS asylum 
officer denies an alien's request for asylum any employment 
authorization associated with a pending asylum application, including 
any automatic extension of employment authorization, will be terminated 
effective on the date the asylum application is denied. If a USCIS 
asylum officer determines that the alien has no lawful immigration 
status and is not eligible for asylum, the asylum officer will refer 
the case to DOJ-EOIR and place the alien in removal proceedings. 
Employment authorization will be available to the alien while in 
removal proceedings and the application for asylum is under review 
before an IJ.
    [cir] Termination After Denial by an IJ or the BIA. The rule 
proposes that if USCIS refers a case to DOJ-EOIR, employment 
authorization would continue for 30-days following the date that the IJ 
denies the asylum application to account for a possible appeal of the 
denial to the BIA. If the alien files a timely appeal, employment 
authorization would continue, and the alien would be able to file a 
renewal EAD application, if otherwise eligible. Employment 
authorization would be prohibited during the Federal court appeal 
process, but the alien could request a (c)(8) EAD if the case is 
remanded to DOJ-EOIR for a new decision.
    [cir] Eligibility. The amendments to the section also clarify 
existing USCIS policy that only an applicant who is in the United 
States may apply for employment authorization.
    [cir] Severability. The amendments also include a severability 
clause. This section is drafted with provisions separated into distinct 
parts. In the event that any provision is not implemented for whatever 
reason, DHS intends that the remaining provisions be implemented as an 
independent rule in accordance with the stated purpose of this rule.
     Amending 8 CFR 208.9, Procedure for interview before an 
asylum officer. The amendments to this section clarify that an 
applicant's failure to appear to receive and acknowledge receipt of the 
decision following an interview and an applicant's request for an 
extension to submit additional evidence are applicant-caused delays for 
purposes of eligibility for employment authorization. The amendments 
also remove references to the ``Asylum EAD clock.'' This section is 
further amended to provide that documentary evidence must be submitted 
no later than 14 calendar days before the interview with an asylum 
officer takes place to improve administrative efficiency and aid in the 
meaningful examination and exploration of evidence in preparation for 
and during the interview. As a

[[Page 62378]]

matter of discretion, the asylum officer may consider evidence 
submitted within the fourteen (14) calendar days in advance of the 
interview date or may grant the applicant a brief extension of time 
during which the applicant may submit additional evidence.
     Amending 8 CFR 208.10, Failure to appear for an interview 
before an asylum officer or for a biometric services appointment for 
the asylum application. The amendments to this section seek to clarify 
that an asylum applicant's failure to appear for an asylum interview or 
biometric services appointment may lead to referral or dismissal of the 
asylum application, and may be treated as an applicant-caused delay 
affecting eligibility for employment authorization. In addition, the 
rule clarifies that USCIS is not obligated to send any notice to the 
applicant about his or her failure to appear at a scheduled biometrics 
appointment or an asylum interview as a prerequisite to making a 
decision on the application, which may include dismissing the asylum 
application or referring it to an IJ. These amendments are intended to 
facilitate more timely and efficient case processing when applicants 
fail to appear for essential appointments. Finally, the amendments 
replace references to fingerprint processing and fingerprint 
appointments with the term presently used by USCIS--``biometric 
services appointment.''
     Amending 8 CFR 274a.12, Classes of aliens authorized to 
accept employment. The amendments to this section remove the language 
in 8 CFR 274a.12(c)(8) referring to ``recommended approvals.'' The 
amendments also delete an obsolete reference to the Commissioner of the 
former Immigration and Naturalization Service (INS) and replace it with 
a reference to USCIS. Amendments to this section also clarify that 
aliens who have been paroled into the United States after being found 
to have a credible fear or reasonable fear of persecution or torture 
may apply for employment authorization under 8 CFR 274a.12(c)(8), if 
eligible, but may not apply under 8 CFR 274a.12(c)(11) (parole-related 
EADs). The amendments also provide that employment authorization will 
not be granted if a denial of an asylum application is under judicial 
review, in conformity with amendments proposed at 8 CFR 208.7. DHS 
seeks public comment on this proposal and whether the (c)(11) category 
(parole-based EADs) should be further limited, such as to provide 
employment authorization only to those DHS determines are needed for 
foreign policy, law enforcement, or national security reasons, 
especially since parole is meant only as a temporary measure to allow 
an alien's physical presence in the United States until the need for 
parole is accomplished or the alien can be removed.
     Amending 8 CFR 274a.13, Application for employment 
authorization. The proposed amendments to this section remove 
unnecessary references to the supporting documents required for 
submission with applications for employment authorization based on a 
pending asylum application and clarify that such employment 
authorization applications, like all other applications, petitions, or 
requests for immigration benefits, must be filed on the form designated 
by USCIS, in accordance with the form instructions, and along with any 
applicable fees. DHS is also proposing to amend 8 CFR 274a.13(a)(1) so 
that USCIS has discretion to grant applications for employment 
authorization filed by asylum applicants pursuant to 8 CFR 
274a.12(c)(8) in keeping with its discretionary statutory authority 
under INA 208(d)(2), 8 U.S.C. 1158(d)(2). To conform the current 
automatic extension and termination provisions to the changes proposed 
under 8 CFR 208.7(b), the amendments to this section provide that any 
employment authorization granted under 8 CFR 274a.12(c)(8) that was 
automatically extended pursuant 8 CFR 274a.13(d)(1) will automatically 
terminate on the date the asylum officer, IJ, or the BIA denies the 
asylum application.
     Amending 8 CFR 274a.14, Termination of employment 
authorization. For purposes of clarity, the amendment to this section 
adds a new paragraph at 8 CFR 274a.14(a)(1) that cross-references any 
automatic EAD termination provision elsewhere in DHS regulations, 
including the automatic termination provisions being proposed by this 
rule in 8 CFR 208.7(b).
     Effective date: With limited exceptions, the rules in 
effect on the date of filing form I-765 will govern all initial and 
renewal applications for a (c)(8) EAD based on a pending asylum 
application and a (c)(11) EAD based on a grant of parole after 
establishing a credible fear or reasonable fear of persecution or 
torture. The criminal provisions and the failure to file the asylum 
application within one year of last entry will apply to initial and 
renewal EAD applications pending on the date the final rule is 
published. In order to implement the criminal ineligibility provision, 
DHS will require applicants with a pending initial or renewal (c)(8) 
EAD on the effective date of this rule to appear at an ASC for 
biometrics collection but DHS will not collect the biometrics services 
fee from these aliens. DHS will provide notice of the place, date and 
time of the biometrics appointment to applicants with pending (c)(8) 
EAD application. If applicable, initial (c)(8) EAD applications filed 
before the effective date by members of the Rosario class would not be 
affected by this proposed rule. DHS will allow aliens with pending 
asylum applications that have not yet been adjudicated and who already 
have received employment authorization before the final rule's 
effective date to retain their (c)(8) employment authorization until 
the expiration date on their EAD, unless the employment authorization 
is terminated or revoked on grounds in the existing regulations. DHS 
will also allow aliens who have already received employment 
authorization before the final rule's effective date under the (c)(11) 
eligibility category based on parole/credible fear to retain that 
employment authorization until their EAD expires, unless the employment 
authorization is terminated or revoked on grounds in the existing 
regulations. The proposals in this rule will not impact the 
adjudication of applications to replace lost, stolen, or damaged (c)(8) 
or (c)(11) EADs.

B. Summary of Costs, Benefits, and Transfer Payments

    This proposed rule amends the (c)(8) EAD system primarily by 
extending the period that an asylum applicant must wait in order to be 
employment authorized, and by disincentivizing asylum applicants from 
causing delays in the adjudication of their asylum application. The 
Department has considered that asylum applicants may seek unauthorized 
employment without possessing a valid employment authorization 
document, but does not believe this should preclude the Department from 
making procedural adjustments to how aliens gain access to a 
significant immigration benefit. The provisions seek to reduce the 
incentives for aliens to file frivolous, fraudulent, or otherwise non-
meritorious asylum applications primarily to obtain employment 
authorization and remain for years in the United States for economic 
purposes
    The quantified maximum population this rule would apply to about 
305,000 aliens in the first year the rule could take effect and about 
290,000 annually thereafter. DHS assessed the potential impacts from 
this rule overall, as well as the individual provisions, and provides 
quantitative estimates of such

[[Page 62379]]

impacts where possible and relevant. For the provisions involving 
biometrics and the removal of recommended approvals, the quantified 
analysis covers the entire populations. For the 365-day EAD filing time 
proposal, the quantified analysis also covers the entire population; 
however, DHS relies on historical data to estimate the costs for 
affirmative cases and certain assumptions to provide a maximum 
potential estimate for the remaining affected population. For the 
provisions that would potentially end some EADs early, DHS could 
estimate only the portion of the costs attributable to affirmative 
cases because DHS has no information available to estimate the number 
of defensive cases affected.
    DHS provides a qualitative analysis of the provisions proposing to 
terminate EADs earlier for asylum cases denied/dismissed by an IJ; 
remove employment eligibility for asylum applicants under the (c)(11) 
category, and; bar employment authorization for asylum applicants with 
certain criminal history, who did not enter at a U.S. port of entry, or 
who, with little exception, did not file for asylum within one year of 
their last arrival to the United States. As described in more detail in 
the unquantified impacts section, DHS does not have the data necessary 
to quantify the impacts of these provisions.
    To take into consideration uncertainty and variation in the wages 
that EAD holders earn, all of the monetized costs rely on a lower and 
upper bound, benchmarked to a prevailing minimum wage and a national 
average wage, which generates a range. Specific costs related to the 
provisions proposed are summarized in Table 1. For the provisions in 
which impacts could be monetized, the single midpoint figure for the 
wage-based range is presented.\6\
---------------------------------------------------------------------------

    \6\ The populations reported in Table 1 reflect the maximum 
population that would be covered by the provision. Some of the 
populations that would incur monetized impacts are slightly 
different due to technical adjustments.

      Table 1--Summary of Costs and Transfers of the Proposed Rule
------------------------------------------------------------------------
                                      Annual costs and transfers  (mid-
         Provision summary                         point)
------------------------------------------------------------------------
I. Quantified:
    365-day EAD filing wait period  Population: 39,000.
     (for DHS affirmative asylum    Cost: $542.7 million (quantified
     cases and partial estimates     impacts for 39,000 of the 153,458
     for DHS referrals to DOJ).      total population).
                                    Reduction in employment tax
                                     transfers: $83.2 million
                                     (quantified impacts for 39,000 of
                                     the 153,458).
                                    Cost basis: Annualized equivalence
                                     cost.
                                    Summary: Lost compensation for a
                                     portion of DHS affirmative asylum
                                     cases that benefitted from initial
                                     EAD approvals who would have to
                                     wait longer to earn wages under the
                                     proposed rule; nets out cost-
                                     savings for persons who would no
                                     longer file under the rule;
                                     includes partial estimate of DHS
                                     referral cases to DOJ-EOIR and the
                                     apropos estimated tax transfers. It
                                     does not include impacts for
                                     defensively filed cases.
    Biometrics requirement........  Population for initial and renewal
                                     EADs: 289,751.
                                    Population for pending EADs: 14,451.
                                    Cost: $37,769,580.
                                    Reduction in employment tax
                                     transfers: None.
                                    Cost basis: Maximum costs of the
                                     provision, which would apply to the
                                     first year the rule could take
                                     effect.
                                    Summary: For initial and renewal
                                     EADs, there would be time-related
                                     opportunity costs plus travel costs
                                     of submitting biometrics, as well
                                     as $85 fee for (c)(8) I-765 initial
                                     and renewal populations subject to
                                     the biometrics and fee
                                     requirements. A small filing time
                                     burden to answer additional
                                     questions and read associated form
                                     instructions in the I-765 is
                                     consolidated in this provision's
                                     costs. There would also be time-
                                     related opportunity costs plus
                                     travel costs of submitting
                                     biometrics for EADs pending on the
                                     effective date of the final rule.
    Eliminate recommended           Population: 1,930 annual.
     approvals.
                                    Cost: $13,907,387.
                                    Reduction in employment tax
                                     transfers: $2,127,830.
                                    Cost basis: Annualized equivalence
                                     cost.
                                    Summary: Delayed earnings and tax
                                     transfers that would have been
                                     earned for an average of 52
                                     calendar days earlier with a
                                     recommended approval.
    Terminate EADs if asylum        Population: 575 (current and
     application denied/dismissed    future).
     (DHS).
                                    Cost: $31,792,569.
                                    Reduction in employment tax
                                     transfers: $4,864,263.
                                    Cost basis: Maximum costs of the
                                     provision, which would apply to the
                                     first year the rule could take
                                     effect.
                                    Summary: Forgone earnings and tax
                                     transfers from ending EADs early
                                     for denied/dismissed DHS
                                     affirmative asylum applications.
                                     This change would affect EADs that
                                     are currently valid and EADs for
                                     affirmative asylum applications in
                                     the future that would not be
                                     approved. DHS acknowledges that as
                                     a result of this proposed change,
                                     businesses that have hired such
                                     workers would incur labor turnover
                                     costs earlier than without this
                                     rule.
    365-day EAD filing wait period  Population: 114,458.
     (for the residual population). Cost: $1,189.6 million-$3,600.4
                                     million (quantified impacts for the
                                     remaining 114,458 of the 153,458).
                                    Reduction in employment tax
                                     transfers: $182.0 million-$550.9
                                     million (quantified impacts for the
                                     remaining 114,458 of the 153,458).
                                    Cost basis: Annualized equivalence
                                     cost.
                                    Summary: Lost compensation for the
                                     population of approved annual EADs
                                     for which DHS does not have data to
                                     make a precise cost estimate; The
                                     costs reported are a maximum
                                     because the potential impact is
                                     based on the maximum impact of 151
                                     days; in reality there would be
                                     lower-cost segments to this
                                     population and filing-cost savings
                                     as well.
II. Unquantified:
    Revise (c)(11) category from I- Population: 13,000.
     765.                           Cost: delayed/foregone earnings.
                                    Cost basis; NA.

[[Page 62380]]


                                    Summary: DHS does not know how many
                                     of the actual population will apply
                                     for an EAD via the (c)(8) I-765,
                                     but the population would be zero at
                                     a minimum and 13,000 at a maximum,
                                     with a mid-point of 6,500. The
                                     population would possibly incur
                                     delayed earnings and tax transfers
                                     by being subject to the 365-day EAD
                                     clock (it is noted that this
                                     population would also incur costs
                                     under the biometrics provision,
                                     above), or lost earnings if they do
                                     not apply for a (c)(8) EAD. There
                                     is potentially countervailing cost-
                                     savings due to a reduced pool of
                                     filers under the proposed rule.
    Criminal activity/illegal       DHS is unable to estimate the number
     entry bar.                      of aliens impacted. Impacts could
                                     involve forgone earnings and lost
                                     taxes.
    Adjudication of pending (c)(8)  DHS cannot determine how many of the
     I-765 applications under the    14,451 pending EAD filings would be
     criminal and one-year-filing    impacted by the criminal and one-
     provisions.                     year-filing provisions. Impacts
                                     could involve forgone earning and
                                     tax transfers.
    One-year filing deadline......  Some portion of the 8,472 annual
                                     filing bar referrals could be
                                     impacted, which could comprise
                                     deferred/delayed or forgone earning
                                     and tax transfers. DHS does not
                                     have data on filing bar cases
                                     referred to DOJ-EOIR.
    Terminate EADs if asylum        DOJ-EOIR has denied an average of
     application denied/dismissed    almost 15,000 asylum cases
     (DOJ-EOIR).                     annually; however, DHS does not
                                     have data on the number of such
                                     cases that have an EAD. Costs would
                                     involve forgone earnings and tax
                                     transfers for any such EADs that
                                     would be terminated earlier than
                                     they otherwise would, as well as
                                     forgone future earnings and tax
                                     transfers. DHS acknowledges that as
                                     a result of this proposed change
                                     businesses that have hired such
                                     workers would incur labor turnover
                                     costs earlier than without this
                                     rule. Businesses unable to replace
                                     these workers would also incur
                                     productivity losses.
------------------------------------------------------------------------

    For those provisions that affect the time an asylum applicant is 
employed, the impacts of this rule would include both distributional 
effects (which are transfers) and costs.\7\ The transfers would fall on 
the asylum applicants who would be delayed in entering the U.S. labor 
force or who would leave the labor force earlier than under current 
regulations. The transfers would be in the form of lost compensation 
(wages and benefits). A portion of this lost compensation might be 
transferred from asylum applicants to others that are currently in the 
U.S. labor force, or, eligible to work lawfully, possibly in the form 
of additional work hours or the direct and indirect added costs 
associated with overtime pay. A portion of the impacts of this rule 
would also be borne by companies that would have hired the asylum 
applicants had they been in the labor market earlier or who would have 
continued to employ asylum applicants had they been in the labor market 
longer, but were unable to find available replacement labor. These 
companies would incur a cost, as they would be losing the productivity 
and potential profits the asylum applicant would have provided. 
Companies may also incur opportunity costs by having to choose the next 
best alternative to the immediate labor the asylum applicant would have 
provided and by having to pay workers to work overtime hours. USCIS 
does not know what this next best alternative may be for those 
companies. As a result, USCIS does not know the portion of overall 
impacts of this rule that are transfers or costs, but estimated the 
maximum monetized impact of this rule in terms of delayed/lost labor 
compensation. If all companies are able to easily find reasonable labor 
substitutes for the positions the asylum applicant would have filled, 
they will bear little or no costs, so $4,461.9 million (annualized at 
7%) will be transferred from asylum applicants to workers currently in 
the labor force or induced back into the labor force (we assume no tax 
losses as a labor substitute was found). Conversely, if companies are 
unable to find reasonable labor substitutes for the position the asylum 
applicant would have filled then $4,461.9 million is the estimated 
monetized cost of the rule, and $0 is the estimated monetized transfers 
from asylum applicants to other workers. In addition, under this 
scenario, because the jobs would go unfilled there would be a loss of 
employment taxes to the Federal Government. USCIS estimates $682.9 
million as the maximum decrease in employment tax transfers from 
companies and employees to the Federal Government.
---------------------------------------------------------------------------

    \7\ Transfer payments are monetary payments from one group to 
another that do not affect total resources available to society. See 
OMB Circular A-4 pages 14 and 38 for further discussion of transfer 
payments and distributional effects. Circular A-4 is available at: 
https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf.
---------------------------------------------------------------------------

    The two scenarios described above represent the estimated endpoints 
for the range of monetized impacts resulting from the provisions that 
affect the amount of time an asylum applicant is employed. USCIS notes 
that given that the U.S. unemployment rate is hovering around a 50-year 
low--at 3.7% as of August 2019--it could be possible that employers may 
face difficulties finding reasonable labor substitutes. DHS does note 
that an alternative measure of the unemployment rate from the Bureau of 
Labor Statistics (the U-6) provides additional information on the labor 
market not found in the official unemployment rate (the U-3). The U-6 
rate is a broader measure of labor underutilization and takes into 
account workers not included in the official U-3 rate that could 
potentially benefit from this rule. For example, the U-6 rate considers 
persons who are neither working nor looking for work but indicate they 
want and are available for a job and have looked for work sometime in 
the past twelve months and also considers part-time workers who 
otherwise want and are available for full time employment. The U-6 rate 
shows unemployment at 7.2 percent, which is much higher than the 
official U-3 rate of 3.7 percent.\8\
---------------------------------------------------------------------------

    \8\ The full definition of the U-3 and U-6 unemployment rates 
can be found on the Bureau of Labor Statistics (BLS) website under 
the ``Local Area Unemployment Statistics (LAUS),'' at: https://www.bls.gov/lau/stalt.htm. The actual figures for the U-3 and U-6 
unemployment rates are found in table A-15, ``Alternative Measures 
of Labor Underutilization,'' in the Economic News Release Archives 
at: https://www.bls.gov/news.release/archives/empsit_09062019.htm.
---------------------------------------------------------------------------

    Included in the broader U-6 unemployment rate is the number of 
persons employed part time for economic reasons (sometimes referred to 
as involuntary part-time workers), which BLS estimates is 4.4 million 
in August 2019. These individuals, who would have preferred full-time

[[Page 62381]]

employment, were working part time because their hours had been reduced 
or they were unable to find full-time jobs.\9\ In addition, BLS reports 
for August 2019 that 1.6 million persons were marginally attached to 
the labor force. These individuals were not in the labor force, wanted 
and were available for work, and had looked for a job sometime in the 
prior 12 months. They were not counted as unemployed in the official U-
3 unemployment rate because they had not searched for work in the 4 
weeks preceding the BLS survey, but are counted in the U-6 rate.\10\ 
The U-6 rate provides additional evidence that U.S. workers might be 
available to substitute into the jobs that asylum applicants currently 
hold.
---------------------------------------------------------------------------

    \9\ See Table A-8, ``Employed Persons by Class of Worker and 
Part-Time Status'', Persons at work part time for economic reasons: 
https://www.bls.gov/news.release/archives/empsit_09062019.htm.
    \10\ See Table A-16, ``Persons not in the labor force and 
multiple jobholders by sex, not seasonally adjusted'', Persons 
marginally attached to the labor force: https://www.bls.gov/news.release/archives/empsit_09062019.htm.
---------------------------------------------------------------------------

    Because the biometrics requirement proposed in this rule is a cost 
to applicants and not a transfer, its minimum value of $27.17 million 
is the minimum cost of the rule. The range of impacts described by 
these two scenarios, plus the consideration of the biometrics costs, 
are summarized in Table 2 below (Table 2A and 2B capture the impacts a 
3 and 7 percent rates of discount, in order).

                                            Table 2A--Summary of Range of Monetized Annualized Impacts at 3%
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      Scenario: No replacement labor    Scenario: All asylum applicants      Primary
                                                                       found for asylum applicants        replaced with other workers    (average of the
                                                                   ---------------------------------------------------------------------   highest high
              Category                         Description                                                                                and the lowest
                                                                        Low wage         High wage         Low wage        High wage      low, for each
                                                                                                                                               row)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Transfers:
    Transfers--Compensation.........  Compensation transferred                $0.00            $0.00    $1,473,953,451   $4,461,386,308   $2,230,693,154
                                       from asylum applicants to
                                       other workers (provisions:
                                       365-day wait + end EADs
                                       early + end recommended
                                       approvals).
    Transfers--Taxes................  Lost employment taxes paid        225,587,337      682,771,643              0.00             0.00      341,385,822
                                       to the Federal Government
                                       (provisions: 365-day wait +
                                       end EADs early + end
                                       recommended approvals).
Costs:
    Cost Subtotal--Biometrics.......  Biometrics Requirements.....       27,154,124       45,726,847        27,154,124       45,726,847       36,440,486
    Cost Subtotal--Lost Productivity  Lost compensation used as       1,473,953,451    4,461,386,308              0.00             0.00    2,230,693,154
                                       proxy for lost productivity
                                       to companies (provisions:
                                       365-day wait + end EADs
                                       early + end recommended
                                       approvals).
                                                                   -------------------------------------------------------------------------------------
        Total Costs.................  ............................    1,501,107,576    4,507,113,155        27,154,124       45,726,847    2,267,133,639
--------------------------------------------------------------------------------------------------------------------------------------------------------


                                            Table 2B--Summary of Range of Monetized Annualized Impacts at 7%
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      Scenario: No replacement labor    Scenario: All asylum applicants      Primary
                                                                       found for asylum applicants        replaced with other workers    (average of the
                                                                   ---------------------------------------------------------------------   highest high
              Category                         Description                                                                                and the lowest
                                                                        Low wage         High wage         Low wage        High wage      low, for each
                                                                                                                                               row)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Transfers:
    Transfers--Compensation.........  Compensation transferred                 0.00             0.00     1,474,123,234    4,461,900,172    2,230,950,086
                                       from asylum applicants to
                                       other workers (provisions:
                                       365-day wait + end EADs
                                       early + end recommended
                                       approvals).
    Transfers--Taxes................  Lost employment taxes paid        225,613,314      682,850,264                 0                0      341,425,132
                                       to the Federal Government
                                       (provisions: 365-day wait +
                                       end EADs early + end
                                       recommended approvals).
Costs:
    Cost Subtotal--Biometrics.......  Biometrics Requirements.....       27,171,858       45,766,847        27,171,858       45,766,847       36,469,352
    Cost Subtotal--Lost Productivity  Lost compensation used as       1,474,123,234    4,461,900,172              0.00             0.00    2,230,950,086
                                       proxy for lost productivity
                                       to companies (provisions:
                                       365-day wait + end EADs
                                       early + end recommended
                                       approvals).
                                                                   -------------------------------------------------------------------------------------
        Total Costs.................  ............................    1,501,295,093    4,507,667,018        27,171,858       45,766,847    2,267,419,438
--------------------------------------------------------------------------------------------------------------------------------------------------------

    As required by Office of Management and Budget (OMB) Circular A-4, 
Table 3 presents the prepared A-4 accounting statement showing the 
impacts associated with this proposed regulation:

[[Page 62382]]



                                                                              Table 3--OMB A-4 Accounting Statement
                                                                                       [$ millions, 2019]
                                                                                 [Period of analysis: 2019-2028]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Category                                                       Primary estimate                                  Minimum                  Maximum  Source citation
                                                                                                                estimate                 estimate  (RIA, preamble, etc.)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Benefits:
    Monetized Benefits.......................                     (7%)                      N/A                      N/A                      N/A  RIA.
                                                                  (3%)                      N/A                      N/A                      N/A
                                              --------------------------------------------------
    Annualized quantified, but un-monetized,                          N/A                                            N/A                      N/A  RIA.
     benefits.
                                              ----------------------------------------------------------------------------------------------------
    Unquantified Benefits....................  The benefits potentially realized by the proposed rule are qualitative and accrue to a streamlined  RIA.
                                                system for employment authorizations for asylum seekers that would reduce fraud, improve overall
                                                 integrity and operational efficiency, and prioritize aliens with bona fide asylum claims. These
                                                 impacts stand to provide qualitative benefits to asylum seekers, the communities in which they
                                                  reside and work, the U.S. Government, and society at large. The proposed rule aligns with the
                                                  Administration's goals of strengthening protections for U.S. workers in the labor market. The
                                                       proposed biometrics requirement would enhance identity verification and management.
                                              ----------------------------------------------------------------------------------------------------
Costs:
    Annualized monetized costs (discount rate                     (7%)                 $2,267.4                   $27.17                 $4,507.7  RIA.
     in parenthesis).
                                                                  (3%)                  2,267.1                    27.17                  4,507.1  RIA.
                                              --------------------------------------------------
    Annualized quantified, but un-monetized,                          N/A                                            N/A                      N/A  RIA.
     costs.
                                              ----------------------------------------------------------------------------------------------------
    Qualitative (unquantified) costs.........    In cases where companies cannot find reasonable substitutes for the labor the asylum applicants   RIA.
                                               would have provided, affected companies would also lose profits from the lost productivity. In all
                                                 cases, companies would incur opportunity costs by having to choose the next best alternative to
                                                    immediately filling the job the pending asylum applicant would have filled. There may be
                                                  additional opportunity costs to employers such as search costs. There could also be a loss of
                                                                          Federal, state, and local income tax revenue.
                                                Estimates of costs to proposals that would involve DOJ-EOIR defensively-filed asylum applications
                                                 and DHS-referrals could not be made due to lack of data. Potential costs would involve delayed/
                                                                  deferred or forgone earnings, and possible lost tax revenue.
                                                There would also be delayed or forgone labor income and tax transfers for pending EAD applicants
                                                 impacted by the criminal and one-year filing provisions, renewal applicants, transfers from the
                                                 (c)(11) group, and filing bar cases, all of whom would be subject to some of the criteria being
                                               proposed; in addition, such impacts could also affect those who would be eligible currently for an
                                                 EAD, or have such eligibility terminated earlier, but would be ineligible for an EAD under the
                                                                                         proposed rule.
                                              ----------------------------------------------------------------------------------------------------
Transfers:
    Annualized monetized transfers: ``on                          (7%)                       $0                       $0                       $0  RIA.
     budget''.
                                                                  (3%)                        0                        0                        0
                                              ----------------------------------------------------------------------------------------------------
    From whom to whom?.......................                                                  N/A                                                 N/A.
                                              ----------------------------------------------------------------------------------------------------
    Annualized monetized transfers:                               (7%)                 $2,231.0                       $0                 $4,461.9  RIA.
     Compensation.
                                                                  (3%)                  2,230.7                        0                  4,461.4
                                              ----------------------------------------------------------------------------------------------------
    From whom to whom?.......................   Compensation transferred from asylum applicants to other workers (provisions: 365-day wait + end   RIA.0.0.
                                                   EADs early + end recommended approvals). Some of the deferred or forgone earnings could be
                                                 transferred from asylum applicants to workers in the U.S. labor force or induced into the U.S.
                                                 labor force. Additional distributional impacts from asylum applicant to the asylum applicant's
                                                support network that provides for the asylum applicant while awaiting an EAD; these could involve
                                                burdens to asylum applicants' personal private or familial support system, but could also involve
                                                  public, private, or charitable benefits-granting agencies and non-governmental organizations
                                                                                             (NGOs).
                                              ----------------------------------------------------------------------------------------------------
    Annualized monetized transfers: Taxes....                     (7%)                   $341.4                       $0                   $682.9  RIA.
                                                                  (3%)                    341.4                        0                    682.8
                                              ----------------------------------------------------------------------------------------------------
    From whom to whom?.......................     A reduction in employment taxes from companies and employees to the Federal Government. There
                                               could also be a transfer of Federal, state, and local income tax revenue (provisions: 365-day wait
                                                                         + end EADs early + end recommended approvals).
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                   Category                                                                  Effects                                                   Source citation (RIA, preamble, etc.)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Effects on state, local, and/or tribal            DHS does not know how many low-wage workers could be removed from the labor force due to the     RIA.
 governments.                                       proposed rule. There may also be a reduction in state and local tax revenue. Budgets and
                                               assistance networks that provide benefits to asylum seekers could be impacted negatively if asylum
                                                                             applicants request additional support.
Effects on small businesses..................     This proposed rule does not directly regulate small entities, but has indirect costs on small    RFA.
                                                 entities. DHS acknowledges that ending EADs linked to denied DHS-affirmative asylum claims and
                                               EADs linked to asylum cases under DOJ-EOIR purview would result in businesses that have hired such
                                                workers incurring labor turnover costs earlier than without this rule. Such small businesses may
                                                 also incur costs related to a difficulty in finding workers that may not have occurred without
                                                                                           this rule.
Effects on wages.............................  None.                                                                                               RIA.
Effects on growth............................  None.                                                                                               RIA.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 62383]]

    As will be explained in greater detail later, the benefits 
potentially realized by the proposed rule are qualitative. This rule 
would reduce the incentives for aliens to file frivolous, fraudulent, 
or otherwise non-meritorious asylum applications intended primarily to 
obtain employment authorization or other forms of non-asylum-based 
relief from removal, thereby allowing aliens with bona fide asylum 
claims to be prioritized. A streamlined system for employment 
authorizations for asylum seekers would reduce fraud and improve 
overall integrity and operational efficiency. DHS also believes these 
administrative reforms will encourage aliens to follow the lawful 
process to immigrate to the United States.\11\ These effects stand to 
provide qualitative benefits to asylum seekers, communities where they 
live and work, the U.S. government, and society at large.
---------------------------------------------------------------------------

    \11\ The rule may also provide less incentive for those pursuing 
unauthorized employment in the United States to use the asylum 
application process to move into authorized employment status.
---------------------------------------------------------------------------

    The proposed rule also aligns with the Administration's goals of 
strengthening protections for U.S. workers in the labor market. Several 
employment-based visa programs require U.S. employers to test the labor 
market, comply with recruiting standards, agree to pay a certain wage 
level, and agree to comply with standards for working conditions before 
they can hire an alien to fill the position. These protections do not 
exist in the (c)(8) EAD program. While this rule would not implement 
labor market tests for the (c)(8) program, it would put in place 
mechanisms to reduce fraud and deter those without bona fide claims for 
asylum from filing applications for asylum primarily to obtain 
employment authorization or other, non-asylum-based forms of relief 
from removal. DHS believes these mechanisms will protect U.S. workers.
    The proposed biometrics requirement would provide a benefit to the 
U.S. government by enabling DHS to know with greater certainty the 
identity of aliens requesting EADs in connection with an asylum 
application. The biometrics will allow DHS to conduct criminal history 
background checks to confirm the absence of a disqualifying criminal 
offense, to vet the applicant's biometrics against government databases 
(e.g., FBI databases) to determine if he or she matched any criminal 
activity on file, to verify the applicant's identity, and to facilitate 
card production. Along with the proposals summarized above and 
discussed in detail in the preamble and regulatory impact sections of 
this proposed rule, DHS proposes to modify and clarify existing 
regulations dealing with technical and procedural aspects of the asylum 
interview process, USCIS authority regarding asylum, applicant-caused 
delays in the process, and the validity period for EADs. These 
provisions are not expected to generate costs. If adopted in a final 
rule, the rules and criteria proposed herein relating to certain 
criminal offenses and the one-year-filing bar would apply to pending 
EAD applications. In order to implement the criminal ineligibility 
provision, DHS will require applicants with a pending initial or 
renewal (c)(8) EAD on the effective date of this rule to appear at an 
ASC for biometrics collection but DHS will not collect the biometrics 
services fee from these aliens. DHS will contact applicants with 
pending EAD applications and provide notice of the place, date and time 
of the biometrics appointment. Some aliens could be impacted and some 
may not be granted an EAD as they would otherwise under current 
practice, but DHS does not know how many could be impacted and does not 
estimate costs for this provision.

III. Purpose of the Proposed Rule

    On April 29, 2019, the White House issued a Presidential Memorandum 
(PM) entitled, ``Presidential Memorandum on Additional Measures to 
Enhance Border Security and Restore Integrity to Our Immigration 
System.'' \12\ The White House, referencing the President's earlier 
Proclamations noted that ``our immigration and asylum system is in 
crisis as a consequence of the mass migration of aliens across our 
southern border'' and that the ``emergency continues to grow 
increasingly severe. In March, more than 100,000 inadmissible aliens 
were encountered seeking entry into the United States. Many aliens 
travel in large caravans or other large organized groups, and many 
travel with children. The extensive resources required to process and 
care for these individuals pulls U.S. Customs and Border Protection 
personnel away from securing our Nation's borders. Additionally, 
illicit organizations benefit financially by smuggling illegal aliens 
into the United States and encouraging abuse of our asylum procedures. 
This strategic exploitation of our Nation's humanitarian programs 
undermines our Nation's security and sovereignty. The purpose of this 
memorandum is to strengthen asylum procedures to safeguard our system 
against rampant abuse of our asylum process.'' \13\
---------------------------------------------------------------------------

    \12\ Presidential Memorandum on AdditionalMeasures to Enhance 
Border Security and Restore Integrity to Our Immigration System, 
2019 Daily Comp. Pres. Doc. 251 (Apr. 29, 2019).
    \13\ Id.

The PM directs the Secretary of Homeland Security to propose 
regulations to bar aliens who have entered or attempted to enter the 
United States unlawfully from receiving employment authorization prior 
to being approved for relief and to immediately revoke the employment 
authorization of aliens who are denied asylum or become subject to a 
final order of removal.
    Through this proposed rule, DHS seeks to address the national 
emergency and humanitarian crisis at the border \14\ by (1) reducing 
incentives for aliens to file frivolous, fraudulent, or otherwise non-
meritorious asylum applications intended primarily to obtain employment 
authorization, or other forms of non-asylum based relief, and remain 
for years in the United States due to the backlog of asylum cases, and 
(2) disincentivizing illegal entry into the United States by proposing 
that any alien who entered or attempted to enter the United States at a 
place and time other than lawfully through a U.S. port of entry be 
ineligible to receive a (c)(8) EAD, with limited exceptions. DHS is 
also proposing administrative reforms that will ease some of the 
administrative burdens USCIS faces in accepting and adjudicating 
applications for asylum and related employment authorization.
---------------------------------------------------------------------------

    \14\ Proclamation No. 9844, 84 FR 4949 (Feb. 15, 2019).
---------------------------------------------------------------------------

    As explained more fully below, USCIS believes these reforms will 
help mitigate the crisis that our immigration and asylum systems are 
facing as a consequence of the mass migration of aliens across our 
southern border,\15\ as well as improve the current asylum backlog, 
helping to clear the way for meritorious asylum applications to be 
received, processed, and adjudicated more quickly, and allowing USCIS 
to issue employment authorizations more efficiently. The extensive 
resources required to process and care for these individuals pulls 
personnel away from securing our Nation's borders. Additionally, 
illicit organizations benefit financially by smuggling illegal aliens 
into the United States and encouraging abuse of our asylum procedures. 
This strategic exploitation of our Nation's humanitarian programs 
undermines our Nation's security and

[[Page 62384]]

sovereignty.\16\ These interests, when weighed against any reliance 
interest on behalf of impacted aliens, are greater, particularly 
because of the large increase in number of those seeking asylum at the 
border, which is operationally unsustainable for DHS long-term.
---------------------------------------------------------------------------

    \15\ https://www.whitehouse.gov/presidential-actions/presidential-memorandum-additional-measures-enhance-border-security-restore-integrity-immigration-system/.
    \16\ Id.
---------------------------------------------------------------------------

    It is the policy of the Executive Branch to manage humanitarian 
immigration programs in a safe, orderly manner that provides access to 
relief or protection from removal from the United States for aliens who 
qualify, and that promptly denies benefits to and facilitates the 
removal of those who do not.\17\ This rulemaking is part of a series of 
reforms DHS is undertaking, in coordination with DOJ-EOIR, to improve 
and streamline the asylum system, so that those with bona fide asylum 
claims can be prioritized and extended the protections that the United 
States has offered for over a century, including employment 
authorization, to aliens legitimately seeking refuge from persecution
---------------------------------------------------------------------------

    \17\ https://www.whitehouse.gov/presidential-actions/presidential-memorandum-additional-measures-enhance-border-security-restore-integrity-immigration-system/.
---------------------------------------------------------------------------

A. Efforts To Reform the Asylum System

    The Refugee Act of 1980, Public Law 96-212, 94 Stat. 102, was the 
first comprehensive legislation to establish the modern refugee and 
asylum system.\18\ Congress passed the Refugee Act mainly to replace 
the ad hoc process that existed at the time for admitting refugees and 
to provide a more uniform refugee and asylum process.\19\ The focus of 
the Refugee Act was reforming the overseas refugee program. The Refugee 
Act did not explicitly address how the United States should reform the 
asylum process or handle the then-sudden influx of asylum seekers, such 
as occurred with the Mariel boatlift--a mass influx of Cuban citizens 
and nationals, many of whom with criminal histories, to the United 
States in 1980.\20\ Congress also provided that any alien who had 
applied for asylum before November 1, 1979, had not been granted 
asylum, and did not have a final order of deportation or exclusion, 
could obtain employment authorization.\21\
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    \18\ Congress added the definition of refugee under section 
101(a)(42) of the Act, 8 U.S.C. 1101(a)(42), based on the 1967 
United Nations (U.N.) Protocol relating to the Status of Refugees, 
19 U.S.T. 6223, TIAS No. 6577, 606 U.N.T.S. 267 (1967), which the 
United States ratified in November of 1968. The Refugee Act also 
made withholding of removal mandatory, authorized adjustment of 
status for asylees and refugees, expanded the funding available for 
domestic refugee assistance services, and barred eligibility for 
asylum for aliens who were convicted of a serious crime, firmly 
resettled, persecutors, or a danger to the security of the United 
States.
    \19\ See Public Law 96-212, 94 Stat. 102, Sec.  101(b) and S. 
Rep. 96-256 (July 23, 1979), at pp. 141-143. Earlier treatment of 
refugees came from the Displaced Persons Act of 1948, 62 Stat. 1009, 
as amended, the Refugee Relief Act of 1953, 67 Stat. 400, and the 
Refugee-Escapee Act of 1957, 71 Stat. 643.
    \20\ See, e.g., Immigration Reform and Control Act of 1982: 
Joint Hearing on H.R. 5872 and S. 2222 Before the Subcommittee on 
Immigration, Refugees, and International Law, Committee on the 
Judiciary, House of Representatives, and Subcommittee on Immigration 
and Refugee Policy, Committee on the Judiciary, 97th Cong. 2nd Sess, 
326-328 (Apr. 1 and 20, 1982) (statement of Attorney General William 
French).
    \21\ 94 Stat. 102 at sec. 401(b) and (c).
---------------------------------------------------------------------------

    In 1980, the then-INS issued an interim regulation implementing the 
asylum provisions of the Refugee Act.\22\ This regulation provided that 
an INS district director could authorize an applicant for asylum to 
work, in six-month increments, if the alien had filed a non-frivolous 
application for asylum.\23\ The regulation did not define what 
constituted a ``frivolous'' filing. The regulation also excluded, 
without explanation, the limitation on the size of the class of aliens 
who could qualify for employment authorization (i.e., only aliens who 
had applied for asylum before November 1, 1979, but had not been 
granted asylum, and did not have a final order of deportation or 
exclusion). As a result of the regulation, the class of aliens who 
could seek employment authorization based on an asylum application was 
interpreted to include past and future asylum seekers.
---------------------------------------------------------------------------

    \22\ See Aliens and Nationality; Refugee and Asylum Procedures, 
45 FR 37392 (June 2, 1980). This interim rule was not finalized 
until 1983. See also Aliens and Nationality; Asylum Procedures, 48 
FR 5885-01 (Feb. 9, 1983).
    \23\ 45 FR at 37394, section 208.4.4.
---------------------------------------------------------------------------

    Congress, however, did not provide adequate resources or enact 
legislation that would address the ``pull'' factors that led to 
significant increases in illegal immigration and in asylum filings 
following enactment of the Refugee Act.\24\ In addition, the 
publication of two INS regulations--the 1986 implementing regulations 
for the Immigration Reform and Control Act of 1986 (IRCA), Public Law 
99-603 (Nov. 6, 1986) \25\ and the 1990 asylum regulations--further 
incentivized illegal immigration and the filing of non-meritorious 
asylum claims or other forms of relief because of the ease with which 
aliens could obtain employment authorization, regardless of the basis 
for the application for employment authorization.\26\ In the 
implementing regulations for IRCA, INS provided that aliens could 
receive an interim EAD if INS did not adjudicate the application for 
employment authorization within 60 days (former 8 CFR 274a.12(c) and 
(d)).\27\ The IRCA regulations also required asylum officers to give 
employment authorization, in one-year increments, to any alien who had 
filed a non-frivolous \28\ asylum application. In the 1990 asylum 
regulation, INS also mandated that asylum officers give interim EADs to 
any alien who had filed a non-frivolous asylum application, and that 
asylum officers continue to renew employment authorization for the time 
needed to adjudicate the asylum application (former 8 CFR 
208.7(a)).\29\
---------------------------------------------------------------------------

    \24\ See, e.g., David A. Martin, Making Asylum Policy: The 1994 
Reforms, 70 Wash. L. Rev. 725 (July 1995) and David A. Martin, The 
1995 Asylum Reforms, Ctr. for Immigration Studies (May 1, 2000) for 
a discussion of the history and consequences of the asylum reforms 
in 1990s.
    \25\ IRCA legalized many illegal aliens present in the United 
States prior to 1986, created new temporary agricultural worker 
programs, and mandated employment verification and employer 
sanctions to address the problem of U.S. employers hiring illegal 
immigrants. One of the main reasons Congress passed IRCA was its 
growing concern over the large influx of aliens crossing our borders 
illegally, particularly on the Southwest border, to find jobs. The 
employer verification system and employer sanctions were designed to 
address this concern by reducing the ``pull'' factor created by the 
availability of higher paying jobs in the United States. See, e.g., 
H.R. Rep. No. 99-682(I) at pp. 5649-5654 (July 16, 1986) (Committee 
explanation for the need for IRCA to control illegal immigration).
    \26\ See Martin, supra note 2121, at p. 734; see also David A. 
Martin, Reforming Asylum Adjudication: On Navigating the Coast of 
Bohemia, 138 U. Pa. L. Rev. 1247 (May 1990) at pp. 1267-69, 1288-89, 
and 1373.
    \27\ DOJ final rule, Control of Employment of Aliens, 52 FR 
16216-01 (May 1, 1987). The 60-day period was subsequently extended 
to 90-days with the publication of the final rule, Powers and Duties 
of Service Officers; Availability of Service Records, Control of 
Employment of Aliens, 56 FR 41767-01 (Aug. 23, 1991).
    \28\ DOJ INS also for the first time defined ``frivolous'' to 
mean ``manifestly unfounded or abusive.'' See former 8 CFR 208.7(a) 
(1991).
    \29\ DOJ INS final rule, Aliens and Nationality; Asylum and 
Withholding of Deportation Procedures, 55 FR 30674-01 (July 27, 
1990).
---------------------------------------------------------------------------

    While IRCA's creation of the employer verification system and 
employer sanctions was designed to reduce the ``pull'' factor created 
by the availability of higher paying jobs in the United States, the 
ability to get interim employment authorization within 90 days, 
regardless of the basis for requesting employment authorization in the 
first instance, had the exact opposite effect.\30\ In addition, because 
the agency already had a backlog for adjudicating asylum applications, 
it was unlikely any asylum application would be adjudicated within a 
90-day timeframe, which virtually guaranteed that most asylum 
applicants would be eligible for interim employment authorization.\31\

[[Page 62385]]

The combined effect of the statutory employment authorization for 
asylum applicants, the regulations, and insufficient agency resources 
resulted in a greater influx of aliens, many of whom were not 
legitimate asylum seekers, but instead merely sought to work in the 
United States.\32\
---------------------------------------------------------------------------

    \30\ See Martin, supra note 21, at p. 733-36.
    \31\ In 1994, Congress passed the Violent Crime Control and Law 
Enforcement Act of 1994 (VCCLEA), Public Law 103-322, 108 Stat. 1796 
(Sept. 13, 1994). As part of its findings, Congress stated ``. . . 
in the last decade applications for asylum have greatly exceeded the 
original 5,000 annual limit provided in the Refugee Act of 1980, 
with more than 150,000 asylum applications filed in fiscal year 
1993, and the backlog of cases growing to 340,000.'' VCCLEA, at sec. 
130010(1).
    \32\ See Martin, supra note 21, at p. 733-37.
---------------------------------------------------------------------------

    In 1994, Congress passed the Violent Crime Control and Law 
Enforcement Act of 1994 (VCCLEA), Public Law 103-322, 108 Stat. 1796 
(Sept. 13, 1994), which provided for expedited exclusion proceedings 
and summary deportation of aliens with failed asylum claims and 
provided that no applicant for asylum would be entitled to employment 
authorization unless the Attorney General (now Secretary of Homeland 
Security) determined, as a matter of discretion, that employment 
authorization was appropriate.\33\ Congress passed these amendments 
mainly because the asylum system was being overwhelmed with asylum 
claims, including frivolous and fraudulent claims filed merely to 
obtain employment authorization.\34\ The hope was that the expedited 
exclusion proceedings would reduce such claims. During consideration of 
the VCCLEA, DOJ also conducted a review of the asylum process and 
published regulations designed to reduce the asylum backlogs, eliminate 
procedural hurdles that lengthened the process, and deter abuses in the 
system.\35\ For the first time, DOJ implemented a waiting period for 
asylum seekers--150 days--before they could apply for employment 
authorization. DOJ based the timeframe on the 150-day processing goals 
it had set for asylum officers and IJs to complete asylum cases.
---------------------------------------------------------------------------

    \33\ See Public Law 103-322, 108 Stat. 1796, at sec. 130005.
    \34\ See id. at sec. 130010(1) (findings of the Senate on the 
need for reforms to the asylum process, including finding of a 
backlog of cases up to 340,000); see also H.R. Conf. Rep. 103-711 
(Aug. 21, 1994), at pp. 241-245 and 393-394.
    \35\ DOJ INS final rule, Rules and Procedures for Adjudication 
of Applications for Asylum or Withholding of Deportation and for 
Employment Authorization, 59 FR 62284-01 (Dec. 5. 1994).
---------------------------------------------------------------------------

    In 1996, Congress again amended section 208 when it passed the 
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 
(IIRIRA), Public Law 104-208, 110 Stat. 3009. Congress retained the 
expedited exclusion (now removal) procedures to address the influx of 
thousands of aliens seeking entry into the United States.\36\ Congress 
also reformed the asylum provisions and codified some of the 
administrative reforms INS made when it published the 1994 asylum 
regulation. IIRIRA incorporated language that barred an alien not only 
from eligibility for asylum, but also from any other immigration 
benefits (such as when an alien filed a frivolous application),\37\ 
added a one-year deadline to file for asylum, and codified INS's 
regulatory prohibition on asylum seekers being granted discretionary 
employment authorization before a minimum of 180 days has passed from 
the date of filing of the asylum application.\38\
---------------------------------------------------------------------------

    \36\ See, e.g., H.R. Conf. Rep. 104-828, title III, subtitle A 
(1996).
    \37\ 8 U.S.C. 1158(d)(6) provides:
     If the Attorney General determines that an alien has knowingly 
made a frivolous application for asylum and the alien received the 
notice under paragraph (4)(A), the alien shall be permanently 
ineligible for any benefits under this Act, effective as of the date 
of a final determination on such application.
    \38\ DHS published an interim final rule implementing IIRIRA in 
1997. See DOJ INS, Inspection and Expedited Removal of Aliens; 
Detention and Removal of Aliens; Conduct of Removal Proceedings; 
Asylum Procedures, 62 FR 10312-01 (Mar. 6, 1997). DOJ published a 
separate final rule December 6, 2000 which finalized the provisions 
related to the asylum process proposed in the DOJ INS and EOIR joint 
rule, New Rules Regarding Proceedings for Asylum and Withholding of 
Removal, 63 FR 31945 (June 11, 1998), and in response to comments to 
the asylum procedures made in response to the IIRIRA interim final 
rule.
---------------------------------------------------------------------------

B. Need for Reform

    Since IIRIRA, there have been no major statutory changes to the 
asylum provisions to address the immigration realities faced by the 
United States today. However, since 2016, the United States has 
experienced an unprecedented surge \39\ in the number of aliens who 
enter the country unlawfully across the southern border. In Fiscal Year 
2019, CBP apprehended over 800,000 aliens attempting to enter the 
United States illegally.\40\ These apprehensions are more than double 
of those in Fiscal Year 2018.\41\ If apprehended, many of these 
individuals claim asylum and remain in the United States while their 
claims are adjudicated. There is consistent historical evidence that 
approximately 20 percent or less of such claims will be successful.\42\ 
This surge in border crossings and asylum claims has placed a strain on 
the nation's immigration system. The large influx has consumed an 
inordinate amount of the Department of Homeland Security's resources, 
which includes surveilling, apprehending, screening, and processing the 
aliens who enter the country, detaining many aliens pending further 
proceedings, and representing the United States in immigration court 
proceedings. The surge has also consumed substantial resources at the 
Department of Justice, whose immigration judges adjudicate asylum 
claims and whose officials prosecute aliens who violate Federal 
criminal law. The strain also extends to the judicial system, which 
must handle petitions to review denials of asylum claims, many of which 
can take years to reach final disposition, even when the claims for 
asylum lack merit.
---------------------------------------------------------------------------

    \39\ See CBP Southwest Border Total Apprehensions/Inadmissibles 
at https://www.cbp.gov/newsroom/stats/sw-border-migration.
    \40\ Id.
    \41\ See CBP Enforcement Statistics at https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics.
    \42\ See Executive Office for Immigration Review Adjudication 
Statistics ``Asylum Decision Rates'' (July 2019), https://www.justice.gov/eoir/page/file/1104861/download.
---------------------------------------------------------------------------

    In order to maintain the very integrity of the asylum system, it is 
imperative that DHS take all necessary measures to create disincentives 
to come to the United States for aliens who do not fear persecution on 
the five protected grounds of race, religion, nationality, political 
opinion, or particular social group, or torture.\43\ Fleeing poverty 
and generalized crime in one's home country does not qualify an 
individual for asylum in the United States. See, e.g., Hui Zhuang v. 
Gonzales, 471 F.3d 884, 890 (8th Cir. 2006) (``Fears of economic 
hardship or lack of opportunity do not establish a well-founded fear of 
persecution.'').
---------------------------------------------------------------------------

    \43\ See, e.g., https://www.wbur.org/cognoscenti/2018/08/08/why-do-migrants-flee-central-america-susan-akram, https://www.washingtonpost.com/world/national-security/hunger-not-violence-fuels-guatemalan-migration-surge-us-says/2018/09/21/65c6a546-bdb3-11e8-be70-52bd11fe18af_story.html?noredirect=on; https://time.com/longform/asylum-seekers-border/.
---------------------------------------------------------------------------

    Statistics support DHS's assertion that the vast majority of 
protection claims are not motivated by persecution under the five 
protected grounds or torture. The historic high in affirmative asylum 
applications and credible fear receipts in FY 2018 \44\ is matched by a 
historic low rate of approval of affirmative asylum applications and 
credible fear claims in FY 2018.\45\
---------------------------------------------------------------------------

    \44\ USCIS Asylum Division Volume Projection Committee--FY 2020/
2021, June 2019.
    \45\ Id.
---------------------------------------------------------------------------

    As noted above, it is the policy of the Executive Branch to manage 
our humanitarian immigration programs in a safe, orderly manner that 
provides access to relief or protection from removal from the United 
States for aliens who qualify, and that promptly

[[Page 62386]]

denies benefits to and facilitates the removal of those who do not.\46\ 
Many protection applications appear to be coming from applicants 
escaping poor economic situations and generalized violence rather than 
the five protected grounds for asylum or torture. DHS is proposing more 
stringent requirements for eligibility for employment authorization, in 
order to disincentivize aliens who are not legitimate asylum seekers 
from exploiting a humanitarian program to seek economic opportunity in 
the United States.
---------------------------------------------------------------------------

    \46\ https://www.whitehouse.gov/presidential-actions/presidential-memorandum-additional-measures-enhance-border-security-restore-integrity-immigration-system/.
---------------------------------------------------------------------------

    DHS believes that this rule stands alone as an important 
disincentive for individuals use asylum as a path to seek employment in 
the United States. DHS further believes that this rule will complement 
broader interagency efforts to mitigate large-scale migration to the 
U.S. Southern Border by precluding some asylum seekers from entering 
the United States.\47\ These programs are strengthened by DHS making 
important procedural adjustments to how those aliens who do enter the 
United States gain access to such a significant immigration benefit as 
employment authorization. Further, while some of these aliens may 
disregard the law and work unlawfully in contravention to these 
reforms, the Department does not avoid the establishment of regulatory 
policies because certain individuals might violate the regulations.\48\
---------------------------------------------------------------------------

    \47\ On January 25, 2019, DHS announced certain aliens 
attempting to enter the U.S. illegally or without documentation, 
including those who claim asylum, will no longer be released into 
the United States, where they often fail to file an asylum 
application and/or disappear before an immigration judge can 
determine the merits of any claim. Instead, these aliens will be 
returned to Mexico until their hearing date. See ``Policy Guidance 
for Implementation of the Migrant Protection Protocols'' (Jan. 
2019), https://www.dhs.gov/sites/default/files/publications/19_0129_OPA_migrant-protection-protocols-policy-guidance.pdf. On 
July 15, 2019, DHS and DOJ announced a bar to eligibility for asylum 
to any alien who enters or attempts to enter the United States 
across the southern border, but who did not apply for protection 
from persecution or torture where it was available in at least one 
third country outside the alien's country of citizenship, 
nationality, or last lawful habitual residence through which he or 
she transited en route to the United States. See ``DHS and DOJ Issue 
Third-Country Asylum Rule (July 2019), https://www.dhs.gov/news/2019/07/15/dhs-and-doj-issue-third-country-asylum-rule.
    \48\ Notably, even the former INS remarked on the need for 
reform, notwithstanding the possibility that aliens may simply 
disregard the law and work illegally:
    The Department also considered the claim that asylum applicants 
will disregard the law and work without authorization. While this is 
possible, it also is true that unlawful employment is a phenomenon 
not limited to asylum applicants, but is found among many categories 
of persons who have illegally entered or remained in the United 
States. The Department does not believe that the solution to this 
problem is to loosen eligibility standards for employment 
authorization. This is particularly so because of the evidence that 
many persons apply for asylum primarily as a means of being 
authorized to work. These rules will discourage applications filed 
for such reasons and thus enable the INS to more promptly grant 
asylum--and provide work authorization--to those who merit relief . 
. .
    59 FR 62284-01, 62291.
---------------------------------------------------------------------------

    Congress gave the Executive Branch the discretion to make 
employment authorization available by regulation.\49\ The current 
practice of granting employment authorization to aliens before they 
have been determined eligible for asylum is a ``pull'' factor for the 
illegal immigration of aliens who are ineligible for any immigration 
status or benefit in the United States, and there is an urgent need for 
reform.\50\ Employment authorization for foreign nationals seeking 
asylum is not a right. It is a benefit which must be carefully 
implemented in order to benefit those it is meant to assist.
---------------------------------------------------------------------------

    \49\ INA sec. 208(d)(2).
    \50\ See Martin, supra note 21.
---------------------------------------------------------------------------

IV. Background

A. Legal Authority

    The Secretary of Homeland Security's authority to propose the 
regulatory amendments in this rule can be found in various provisions 
of the immigration laws. Section 102 of the Homeland Security Act of 
2002 (HSA) (Pub. L. 107-296, 116 Stat. 2135), 6 U.S.C. 112 and sections 
103(a)(1) and (3) of the INA, 8 U.S.C. 1103(a)(1), (3), charge the 
Secretary with the administration and enforcement of the immigration 
and naturalization laws of the United States. Section 402(4) of the 
HSA, 6 U.S.C. 202(4), expressly authorizes the Secretary, consistent 
with 6 U.S.C. 236236236 (concerning visa issuance and refusal), to 
establish and administer rules governing the granting of visas or other 
forms of permission, including parole, to enter the United States to 
individuals who are not U.S. citizens or lawful permanent residents. 
See also 6 U.S.C. 271(a)(3), (b) (describing certain USCIS functions 
and authorities). Section 208 of the INA, 8 U.S.C. 1158, gives the 
Secretary the discretionary authority to grant asylum to an alien who 
meets the definition of refugee under section 101(a)(42), 8 U.S.C. 
1101(a)(42).\51\ Sections 235, 236, and 241 of the INA, 8 U.S.C. 1225, 
1226, and 1231, govern the apprehension, inspection and admission, 
detention and removal, withholding of removal, and release of aliens 
encountered in the interior of the United States or at or between the 
U.S. ports of entry. Section 274A of the INA, 8 U.S.C. 1324a, governs 
employment of aliens who are authorized to be employed in the United 
States by statute or in the discretion of the Secretary. The Secretary 
proposes the changes in this rule under these authorities.
---------------------------------------------------------------------------

    \51\ A refugee is defined under INA section 101(a)(42), 8 U.S.C. 
1101(a)(42), as:
    (A) Any person who is outside any country of such person's 
nationality or, in the case of a person having no nationality, is 
outside any country in which such person last habitually resided, 
and who is unable or unwilling to return to, and is unable or 
unwilling to avail himself or herself of the protection of, that 
country because of persecution or a well-founded fear of persecution 
on account of race, religion, nationality, membership in a 
particular social group, or political opinion, or
    (B) in such special circumstances as the President after 
appropriate consultation (as defined in section 1157(e) of this 
title) may specify, any person who is within the country of such 
person's nationality or, in the case of a person having no 
nationality, within the country in which such person is habitually 
residing, and who is persecuted or who has a well-founded fear of 
persecution on account of race, religion, nationality, membership in 
a particular social group, or political opinion. . . . .
---------------------------------------------------------------------------

B. Eligibility for Asylum

    Asylum is a discretionary benefit that can be granted by the 
Secretary or Attorney General if the alien establishes, among other 
things, that he or she has experienced past persecution or has a well-
founded fear of future persecution on account of race, religion, 
nationality, membership in a particular social group, or political 
opinion.\52\ Under the INA, certain aliens are barred from obtaining 
asylum, including aliens who are persecutors, have been convicted of a 
particularly serious crime (which includes aggravated felonies), have 
committed serious nonpolitical crimes outside of the United States, who 
are a danger to the security of the United States, have engaged in 
certain terrorism-related activities or are members of terrorist 
organizations, or were firmly resettled in a third country.\53\
---------------------------------------------------------------------------

    \52\ INA sec. 208(b), 8 U.S.C. 1158(b).
    \53\ INA sec. 208(b)(2)(A), 8 U.S.C. 1158(b)(2)(A).
---------------------------------------------------------------------------

    Aliens seeking asylum generally must apply for asylum within one 
year from the date of their last arrival in the United States. An alien 
who files for asylum after the one-year deadline is not eligible to 
apply for asylum unless the Secretary or Attorney General, in his or 
her discretion, excuses the late filing.\54\ For a late filing to be 
excused, the alien must demonstrate that changed circumstances 
materially affected the alien's eligibility for asylum, or 
extraordinary circumstances delayed

[[Page 62387]]

filing during the one-year period.\55\ Even if an alien meets all the 
criteria for asylum, including establishing past persecution or a well-
founded fear of future persecution and any exceptions to late filing, 
the Secretary or Attorney General can still deny asylum as a matter of 
discretion.\56\
---------------------------------------------------------------------------

    \54\ The one-year deadline does not apply to an alien who is an 
unaccompanied alien child, as defined in 6 U.S.C. 279(g). INA sec. 
208(a)(2)(E), 8 U.S.C. 1158(a)(2)(E).
    \55\ INA sec. 208(a)(2)(D), 8 U.S.C. 1158(a)(2)(D).
    \56\ See INA sec. 208(b)(1), 240(c)(4)(ii); 8 U.S.C. 1158(b)(1), 
1229a(c)(4)(ii).
---------------------------------------------------------------------------

    Aliens who are granted asylum cannot be removed or returned to 
their country of nationality or last habitual residence, are employment 
authorized incident to their status, and may be permitted to travel 
outside of the United States with prior consent from the Secretary.\57\ 
Asylum can be terminated if the alien was not eligible for asylum 
status at the time of the asylum grant or is otherwise no longer 
eligible for asylum under the law.\58\
---------------------------------------------------------------------------

    \57\ INA sec. 208(c)(1), 8 U.S.C. 1158(c)(1).
    \58\ INA sec. 208(c)(2), 8 U.S.C. 1158(c)(2).
---------------------------------------------------------------------------

C. Affirmative vs. Defensive Asylum Filings

    To request asylum, an alien must file an application with either 
USCIS or with the immigration court, using Form I-589, Application for 
Asylum and for Withholding of Removal. If the immigration judge or the 
Board of Immigration Appeals determines that an alien knowingly filed a 
frivolous application for asylum, the alien is permanently ineligible 
for asylum and any other benefits or relief under the Act, with the 
exception of relief from removal through withholding and deferral of 
removal. INA sec. 208(d)(6), 8 U.S.C. 1158(d)(6); 8 CFR 208.2020, 
1208.20.
    Asylum applications are characterized by which agency has 
jurisdiction over the alien's case. If an alien is physically present 
in the United States, not detained, and has not been placed in removal 
proceedings, the alien files the asylum application with USCIS. These 
applications are known as ``affirmative'' filings. If DHS places an 
alien in removal proceedings, the alien files an application for asylum 
with an IJ.\59\ These applications are known as ``defensive'' filings 
and include aliens the USCIS asylum officer refers to the IJ for de 
novo review of their asylum claim.
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    \59\ Where an asylum application is filed by an unaccompanied 
alien child, USCIS has initial jurisdiction over that application, 
even if the applicant is in removal proceedings. INA sec. 
208(b)(3)(C), 8 U.S.C. 1158(b)(3)(C); William Wilberforce 
Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), 
Public Law 110-457 (Dec. 23, 2008).
---------------------------------------------------------------------------

    Aliens who present themselves at a U.S. port of entry (air, sea, or 
land) are generally deemed applicants for admission.\60\ If an 
immigration officer determines that an alien is inadmissible under 
section 212(a)(6)(C) or 212(a)(7) of the Act for being in possession of 
false documents, making false statements, or lacking the required 
travel documentation, the alien may be placed in expedited removal 
proceedings under section 235(b)(1) of the Act, 8 U.S.C. 1225(b)(1). 
Such aliens may indicate an intention to apply for asylum, express a 
fear of persecution or torture, or a fear of return to their home 
country and must be interviewed by an asylum officer to determine 
whether the alien has a credible fear of persecution or torture. INA 
section 235(b)(1), 8 U.S.C. 1225(b)(1); 8 CFR 235.3(b)(4). If an alien 
is determined to have a credible fear, ``the alien shall be detained 
for further consideration of application for asylum.'' INA sec. 
235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii). Asylum applications based 
initially on a positive credible fear determination are under the 
jurisdiction of the immigration courts once a Notice to Appear (NTA) is 
filed with the court and are considered ``defensively-filed'' 
applications. Similarly, if an alien has a positive credible fear 
determination, but is released from detention by ICE, the alien is 
still considered to be under the jurisdiction of the immigration court 
once the NTA is filed and must file the application for asylum with the 
court.
---------------------------------------------------------------------------

    \60\ INA sec. 101(a)(13)(C), 8 U.S.C. 1101(a)(13)(C) provides 
separate exceptions for when a lawful permanent resident will be 
considered an applicant for admission (e.g., abandoned residence, 
continuous absence of 180 days, illegal activity after departure 
from the United States).
---------------------------------------------------------------------------

D. Employment Authorization for Asylees and Asylum Applicants

    Whether an alien is authorized to work in the United States depends 
on the alien's status in the United States and whether employment is 
specifically authorized by statute or only authorized pursuant to the 
Secretary's discretion. Employment authorization for aliens granted 
asylum and for asylum applicants is authorized under INA sections 
208(c)(1)(B) and (d)(2), respectively. Employment authorization for 
aliens granted asylum is statutorily mandated and incident to their 
status. Aliens granted asylum (asylees) are not required to apply for 
an EAD but can do so under 8 CFR 274a.12(a)(5) if they want to have 
documentation that reflects that they are employment authorized. 
Employment authorization for aliens granted withholding of removal or 
deferral of removal are governed by 8 CFR 274a.12(a)(10) and (c)(18) 
respectively.
    An asylum applicant, however, is not entitled to employment 
authorization by statute. INA section 208(d)(2), 8 U.S.C. 1158(d)(2). 
The Secretary, through regulations, may authorize employment for aliens 
who request asylum while the asylum application is pending 
adjudication. Even if the Secretary chooses to grant employment 
authorization to an asylum applicant, under the current statute and 
regulations, he or she cannot grant such authorization until 180 days 
after the filing of the application for asylum. Id. In practice, this 
180-day period is commonly called the ``180-day Asylum EAD Clock.'' 
\61\ The goal of the Asylum EAD clock is to deter applicants from 
delaying their asylum application. Therefore, USCIS does not count, for 
purposes of eligibility for an EAD, the days that actions by the 
applicant have resulted in delays to the adjudication of his or her 
asylum application. However, applicants, practitioners, and USCIS 
itself have all cited difficulty with accurate clock calculations.\62\ 
In light of these issues, USCIS is proposing to eliminate the clock 
altogether and, instead, extend the mandatory waiting period to file an 
asylum-based EAD application. USCIS is also proposing that the EAD 
application will be denied if the asylum case is subject to an 
applicant-caused delay at the time the Form I-765(c)(8) application is 
adjudicated.
---------------------------------------------------------------------------

    \61\ EOIR-USCIS joint notice, The 180-day Asylum EAD Clock 
Notice, https://www.uscis.gov/sites/default/files/USCIS/Humanitarian/Refugees%20%26%20Asylum/Asylum/Asylum_Clock_Joint_Notice_-_revised_05-10-2017.pdf (last updated May 
9, 2017).
    \62\ See Dep't of Homeland Security, Citizenship & Immigration 
Services Ombudsman Report, Employment Authorization For Asylum 
Applicants: Recommendations To Improve Coordination And 
Communication (Aug. 26, 2011), at p.6.
---------------------------------------------------------------------------

    While the INA bars certain aliens from being granted asylum who, 
for example, are persecutors, have been convicted of a particularly 
serious crime, have committed serious nonpolitical crimes \63\ outside 
of the United States, who are a danger to the security of the United 
States, have engaged in certain terrorism-related related activities or 
are members of terrorist organizations, or were firmly resettled in a 
third country, such aliens may still apply for asylum, and subsequently 
also apply for an EAD once their application has been pending for 150 
days. INA sec. 208(b)(2)(A), 8 U.S.C. 1158(b)(2)(A).
---------------------------------------------------------------------------

    \63\ See, e.g., INA sec. 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F); 
INA sec. 212(a)(2)(A)(i)(I), 8 U.S.C. 1182(a)(2)(A)(i)(I); INA sec. 
212(a)(2)(B), 8 U.S.C. 1182(a)(2)(B).

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[[Page 62388]]

    Aliens seeking employment authorization generally must apply for an 
EAD by filing Form I-765, Application for Employment Authorization, 
with USCIS in accordance with the form instructions, along with any 
prescribed fee (unless waived). 8 CFR 274a.13. The regulations at 8 CFR 
208.7 and 274a.12(c)(8) govern employment authorization for asylum 
applicants.

E. Asylum and EAD Adjudications

    Under existing regulations, there are several important stages and 
timeframes that can affect the adjudication of asylum applications and 
(c)(8) EADs: (1) The initial filing of an asylum application; (2) the 
one-year filing deadline; (3) the 150-day period asylum applicants must 
wait before they are eligible to file an application for employment 
authorization; and (4) the additional 30-day period (180-days total) 
before USCIS may grant (c)(8) employment authorization.
    Under current 8 CFR 208.3, if USCIS fails to return the incomplete 
application for asylum within 30 days to the applicant, the application 
is automatically deemed complete. Once the asylum application has been 
accepted for processing, asylum officers review it to determine if all 
the documents required to make a decision have been submitted. This 
review also includes a determination of whether the asylum application 
was filed within the required one-year period. If the alien failed to 
file within the one-year period, asylum officers and/or IJs then 
determine whether the alien meets any of the exceptions to the late 
filing bar. In the case of affirmative asylum filings, if the alien 
does not meet an exception, the asylum officer has the authority to 
deny, dismiss, or refer the case to the immigration court. 8 CFR 
208.14. Asylum officers refer cases to the immigration court by issuing 
a NTA, which places the alien into removal proceedings. If the asylum 
officer refers the complete asylum application to the immigration 
court, the immigration court conducts a de novo review and determines 
if the alien meets the required one-year deadline or qualifies for any 
of the late filing exceptions.
    Once the asylum application is accepted, the 150-day waiting period 
for filing a (c)(8) EAD application begins. The regulations at 8 CFR 
208.7(a) further provide that USCIS will have 30 days from the filing 
date of the EAD application to grant or deny that application. The 180-
day asylum EAD ``clock'' therefore includes the 150-day waiting period 
for filing the (c)(8) EAD application, which is the time while the 
asylum application is pending with USCIS, or an IJ, and the additional 
30-day period that USCIS has to grant or deny the EAD application. The 
180-day Asylum EAD Clock excludes delays requested or caused by the 
applicant and does not run again until the applicant cures the delay or 
until the next scheduled event in a case, such as a postponed interview 
due to the delay, or a continued hearing.
    USCIS is not permitted to issue an EAD until 180-days after the 
filing of a complete asylum application (i.e. the date an alien can be 
issued an EAD). If a USCIS asylum officer recommends that an asylum 
application be approved before the required waiting period ends, the 
alien may apply for employment authorization based on the recommended 
approval.
    As noted, there are a number of actions that can delay or toll the 
running of the 180-day Asylum EAD Clock. For example, if an applicant 
fails to appear for a required biometrics appointment, the 180-day 
clock will stop and not recommence until the alien appears for his or 
her biometrics appointment. Similarly, if an alien asks to amend or 
supplement his or her asylum application, fails to appear at an asylum 
office to receive and acknowledge receipt of the decision, requests an 
extension after the asylum interview, or reschedules an asylum 
interview, all of these actions will stop the 180-day Asylum EAD Clock, 
and the EAD clock will not recommence until the required action is 
completed.\64\ As a result, some aliens may have to wait longer than 
180 calendar days before they can be granted employment authorization.
---------------------------------------------------------------------------

    \64\ See id. EOIR-USCIS joint notice, The 180-day Asylum EAD 
Clock Notice, for additional examples of actions that can affect the 
180-day Asylum EAD Clock.
---------------------------------------------------------------------------

    Once an asylum applicant receives an EAD based on a pending asylum 
application, his or her employment authorization will terminate either 
on the date the EAD expires or 60 days after the denial of asylum, 
whichever is longer (affirmatively-filed cases). If the asylum 
application is denied by an IJ, the BIA, or a denial of asylum is 
upheld by a Federal court, the employment authorization terminates upon 
the expiration of the EAD, unless the applicant seeks renewal of 
employment authorization during the pendency of any administrative or 
judicial review.

V. Discussion of Proposed Rule

A. 365-Day Waiting Period To Apply for Asylum-Application-Based EADs

    DHS is proposing to extend the time period an asylum applicant must 
wait before he or she is eligible to be granted employment 
authorization based on a pending asylum application from 180 days to 
365 calendar days. See proposed 8 CFR 208.7. DHS is proposing this 
change to a 365-day waiting period to remove the incentives for aliens 
who are not legitimate asylum seekers to exploit the system and file 
frivolous, fraudulent, or non-meritorious claims to obtain employment 
authorization. Currently, if an alien files an application for asylum, 
the alien can obtain an employment authorization document after just 
180 days, not including any days not counted due to an applicant-caused 
delay. Backlogs at USCIS and the years-long wait for hearings in the 
immigration courts allow aliens to remain in the United States for many 
years, be authorized for employment, and ultimately gain equities for 
an immigration benefit, even if their asylum applications will be 
denied on their merits.\65\ DHS believes that the longer waiting period 
for filing a (c)(8) EAD application will be a strong deterrent to 
frivolous, fraudulent, and non-meritorious asylum filings. Further, in 
light of DHS's assessment \66\ that many asylum applications appear to 
be coming from aliens escaping general criminal violence and poor 
economic situations in their home countries, rather than the five 
protected grounds for asylum or torture, it is logical that more 
stringent requirements for eligibility for employment authorization, 
such as a substantially longer waiting period for employment 
authorization, would disincentivize these would-be asylum seekers from 
coming to the United States in search of economic opportunity. DHS also 
believes that this deterrent, coupled with last-in, first out (LIFO) 
asylum-adjudication scheduling discussed below, will lead to 
meritorious

[[Page 62389]]

applications being granted sooner--resulting in immediate work 
authorization conferred on asylees by INA section 208(c)(1)(B)--and 
non-meritorious applications being denied sooner--resulting in the 
prompt removal of aliens who fail to establish eligibility to remain in 
the United States. DHS acknowledges that the reforms proposed will also 
apply to individuals with meritorious asylum claims, and that these 
applicants may also experience economic hardship as a result of 
heightened requirements for an EAD. However, DHS's ultimate goal is to 
maintain integrity in the asylum process, sustaining an under-regulated 
administrative regime is no longer feasible. It is not unreasonable to 
impose additional time and security requirements on asylum seekers. 
Asylum seekers already are subject to temporal and security 
restrictions, and for the United States to scale up those restrictions 
based on operational needs is entirely reasonable.
---------------------------------------------------------------------------

    \65\ See, e.g., Doris Meissner, Faye Hipsman, and T. Alexander 
Aleinikoff, The U.S. Asylum System in Crisis; Charting a Way 
Forward, Migration Policy Institute (Sept. 2018) at pp. 4 and 9-12, 
for additional discussion on the impact of backlogs and delays in 
immigration proceedings.
    \66\ See ``Statement from the Department of Homeland Security 
following the Acting Secretary's appearance at Georgetown 
University'' (Oct. 2019), https://www.dhs.gov/news/2019/10/07/statement-department-homeland-security-following-acting-secretary-s-appearance. DHS has made this assessment based on internal reporting 
from regional asylum offices, internal country information 
assessments, and corroborating journalist sources cited prior in 
this Notice of Proposed Rule Making.
---------------------------------------------------------------------------

    DHS is proposing this change to complement its LIFO scheduling 
priority, re-implemented on January 29, 2018.\67\ This priority 
approach, first established by the asylum reforms of 1995 and used for 
20 years until 2014, seeks to deter those who might try to use the 
existing backlog as a means to obtain employment authorization. 
Returning to a LIFO interview schedule will allow USCIS to identify 
frivolous, fraudulent, or otherwise non-meritorious asylum claims 
earlier and place those aliens into removal proceedings. Under the 
previous Administration, the Department discontinued LIFO processing, 
the timing of which corresponded with a significant increase in asylum 
applications.
---------------------------------------------------------------------------

    \67\ USCIS News Release, USCIS To Take Action to Address Asylum 
Backlog (Jan. 31, 2018).
---------------------------------------------------------------------------

    In the last decade, USCIS has seen its backlog of asylum 
applications skyrocket, with the number of new affirmative asylum 
filings increasing by a factor of 2.5 between FY 2014 and FY 2017.\68\ 
As of March 31, 2019, USCIS currently faces an affirmative asylum 
backlog of over 327,984 cases. The high volume of cases stems in part 
from the recent surges in illegal immigration and organized caravans of 
thousands of aliens, primarily from the Northern Triangle countries (El 
Salvador, Honduras, and Guatemala), creating a humanitarian and 
national security crisis at the southern border. USCIS also has had to 
divert resources and asylum officers from processing affirmative asylum 
backlog cases to address the continuing high volume of credible fear 
and reasonable fear cases that require immediate interviews.
---------------------------------------------------------------------------

    \68\ See supra note 39.
---------------------------------------------------------------------------

    DHS proposes to eliminate the 180-day Asylum EAD Clock and instead 
deny EAD applications that have unresolved, applicant-caused delays 
existing on the date of EAD adjudication. The proposed elimination of 
the 180-day EAD clock will resolve some of the difficulties 
adjudicators face in processing asylum EAD applications. Calculating 
the current Asylum EAD clock is one of the most complex and time-
consuming aspects of EAD adjudications.\69\ It requires multipart 
calculations and the tracking of the start and stop dates for each 
individual applicant's case. It also requires coordination with DOJ-
EOIR for defensively-filed cases that are not under USCIS' 
jurisdiction.\70\ In light of these issues, USCIS is proposing to 
eliminate the clock altogether and instead extend the mandatory waiting 
period to file for an EAD and notify applicants that their EAD 
application will be denied if the asylum case is subject to an 
applicant-caused delay at the time the Form I-765 (c)(8) application is 
adjudicated. USCIS believes eliminating the 180-day Asylum EAD clock 
will significantly streamline the employment authorization process of 
the (c)(8) EAD because EAD adjudicators will no longer have to 
calculate the number of days that must be excluded to account for 
applicant-caused delays or coordinate with DOJ-EOIR to do so, and will 
instead simply rely on 365 calendar days from the asylum application 
receipt date to determine when an alien can request employment 
authorization. DHS has promulgated a separate rulemaking proposing the 
elimination of the requirement to adjudicate the EAD application within 
30 days. See Removal of 30-Day Processing Provision for Asylum 
Applicant-Related Form I-765 Employment Authorization Applications'' 
DHS Docket No. USCIS-2018-0001, 84 FR 47148 (Sept. 9, 2019).
---------------------------------------------------------------------------

    \69\ USCIS acknowledges that many processes have been automated 
by the Person Centric Query System (PCQS) Asylum EAD Clock 
Calculator. However, the Asylum EAD Clock Calculator is not fully 
automated and there are still calculations that are not captured in 
the Clock Calculator. Additionally, not all scenarios have business 
rules that have been created. This requires officers to do manual 
calculations in many scenarios. The elimination of the 180-day 
Asylum EAD Clock will create overall efficiencies for USCIS given 
these limitations with the Clock Calculator.
    \70\ See, e.g., Citizenship & Immigration Services Ombudsman, 
Employment Authorization For Asylum Applicants, at p.6.
---------------------------------------------------------------------------

    DHS recognizes that a number of aliens who are legitimate asylum 
seekers may experience potential economic hardship because of the 
extended waiting period. However, the asylum system in the United 
States is completely overwhelmed.\71\ DHS is urgently seeking 
solutions, including mustering an all-volunteer force to assist with 
processing incoming migrants at the southwest border of the United 
States.\72\ But mitigating this unprecedented pressure on the U.S. 
immigration system will require more than just adding and reallocating 
DHS resources. DHS must take steps to address the pull factors bringing 
economic migrants to the United States.\73\ The urgency to maintain the 
efficacy and the very integrity of the U.S. asylum and immigration 
system outweighs any hardship that may be imposed by the additional 
six-month waiting period. The integrity and preservation of the U.S. 
asylum system takes precedence over potential economic hardship faced 
by alien arrivals who enjoy no legal status in the United States, 
whether or not those aliens may later be found to have meritorious 
claims. DHS seeks public comment on this proposed amendment.
---------------------------------------------------------------------------

    \71\ See, e.g., Joel Rose and John Burnett, Migrant Families 
Arrive in Busloads as Border Crossings Hit 10-Year High, Nat'l Pub. 
Radio (March 5, 2019) for observations about the recent surges in 
illegal immigration on the southern border.
    \72\ See, e.g., Geneva Sands, DHS Secretary Nielsen Asks for 
Volunteers to Help at the Border, CNN Politics (Mar. 29, 2019); 
Miriam Jordan, More Migrants are Crossing the Border This Year. 
What's Changed?, N.Y. Times (Mar. 05, 2019).
    \73\ See, e.g., de C[oacute]rdoba, Jose. The Guatemalan City 
Fueling the Migrant Exodus to America, The Wall Street Journal, 
(July 21,2019), www.wsj.com/articles/the-guatemalan-city-fueling-the-migrant-exodus-to-america-11563738141.
---------------------------------------------------------------------------

B. One-Year Filing Deadline

    As part of the reforms to the asylum process, DHS also is 
emphasizing the importance of the statutory one-year filing deadline 
for asylum applications. Both DHS and DOJ-EOIR adjudicate asylum 
applications filed by aliens who reside in the United States for years 
before applying for asylum. Many aliens filing for asylum now are 
aliens who were inspected and admitted or paroled but failed to depart 
at the end of their authorized period of stay (visa overstays), or who 
entered without inspection and admission or parole and remained, not 
because of a fear of persecution in their home country, but for 
economic reasons.\74\ In addition, the

[[Page 62390]]

Asylum Division reports that a contributing factor to the asylum 
backlog is an increase in the number of applicants who file skeletal or 
fraudulent asylum applications affirmatively to trigger removal 
proceedings before the immigration court where they can apply for 
cancellation of removal, a statutory defense against removal and 
pathway to lawful permanent resident status available to those who have 
at least ten years of physical presence in the United States and meet 
additional eligibility criteria.\75\ DHS seeks to address this practice 
and reduce the asylum backlog by proposing to make aliens ineligible 
for (c)(8) employment authorization if they fail to file their asylum 
application within one year of their last arrival in the United States 
as required by statute. Based on statute and relevant case law, DHS 
also proposes limited exceptions to the one-year-filing deadline as it 
relates to eligibility for a (c)(8) EAD, namely those who meet an 
exception under INA section 208(a)(2)(D) or if the applicant was an 
unaccompanied alien child on the date the asylum application was first 
filed. DHS believes that the statutory one-year filing period is a 
sufficient period of time for bona fide asylum applicants to make their 
claim with USCIS or an IJ. DHS seeks public comments on these proposed 
amendments.
---------------------------------------------------------------------------

    \74\ Even Congress found that the asylum system was being 
overwhelmed with asylum claims, including frivolous and fraudulent 
claims filed merely to obtain employment authorization. See, e.g., 
Public Law 103-322, 108 Stat. 1796, at sec. 130010(3) (findings of 
the Senate on the need for reforms to the asylum process, including 
finding that the asylum system was being abused ``by fraudulent 
applicants whose primary interest is obtaining work authority in the 
United States while their claim languishes in the backlogged asylum 
processing system.''). See also H.R. Rep. No. 99-682(I) at pp. 5649-
5654, where Congress discussed the impact of economic migrants on 
the U.S. economy during consideration of IRCA in 1986:
    Now, as in the past, the Committee remains convinced that 
legislation containing employer sanctions is the most humane, 
credible, and effective way to respond to the large scale influx of 
undocumented aliens. While there is no doubt many who enter 
illegally do so for the best of motives--to seek a better life for 
themselves and their families--immigration must proceed in a legal, 
orderly and regulated fashion. As a sovereign nation, we must secure 
our borders.
    * * *
    Since most undocumented aliens enter this country to find jobs, 
the Committee believes it is essential to require employers to share 
the responsibility to address this serious problem. The need for 
control is underscored by international demographics. Undocumented 
aliens tend to come from countries with high population growth and 
few employment opportunities. The United States is not in a position 
to redress this imbalance by absorbing these workers into our 
economy and our population. U.S. unemployment currently stands at 7% 
and is much higher among the minority groups with whom undocumented 
workers compete for jobs directly.
    \75\ See CIS Ombudsman, Annual Report, at p. 44.
---------------------------------------------------------------------------

C. Criminal Bars to Eligibility

    DHS is proposing to expand the bars to the (c)(8) EAD to any alien 
who has: (1) Been convicted of any aggravated felony as defined in 
section 101(a)(43) of the INA, 8 U.S.C. 1101(a)(43), (2) been convicted 
of any felony in the United States or any serious non-political crime 
outside the United States, or (3) been convicted in the United States 
of certain public safety offenses involving domestic violence or 
assault; child abuse or neglect; controlled substances; or driving or 
operating a motor vehicle under the influence of alcohol or drugs, 
regardless of how the offense is classified by the state or local 
jurisdiction. DHS also proposes to consider, on a case-by-case basis, 
whether aliens who have been convicted of any non-political foreign 
criminal offense, or have unresolved arrests or pending charges for any 
non-political foreign criminal offenses, warrant a favorable exercise 
of discretion.\76\ DHS also proposes to consider, on a case-by-case 
basis, whether an alien who has unresolved domestic charges or arrests 
that involve domestic violence, child abuse, possession or distribution 
of controlled substances, or driving under the influence of drugs or 
alcohol, warrant a favorable exercise of discretion for a grant of 
employment authorization.
---------------------------------------------------------------------------

    \76\ See, e.g., INA sec. 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F); 
INA sec. 212(a)(2)(A)(i)(I), 8 U.S.C. 1182(a)(2)(A)(i)(I); INA sec. 
212(a)(2)(B), 8 U.S.C. 1182(a)(2)(B).
---------------------------------------------------------------------------

    To determine if an asylum applicant seeking employment 
authorization has a disqualifying criminal history, DHS proposes to 
require such applicants to appear at an ASC to provide their biometrics 
for their initial and renewal applications. The biometrics will allow 
DHS to conduct criminal history background checks to confirm the 
absence of a disqualifying criminal offense, to vet the applicant's 
biometrics against government databases (e.g., FBI databases) to 
determine if he or she matched any criminal activity on file, to verify 
the applicant's identity, and to facilitate card production. In order 
to implement the criminal ineligibility provision, DHS will require 
applicants with a pending initial or renewal (c)(8) EAD on the 
effective date of this rule to appear at an ASC for biometrics 
collection but DHS will not collect the biometrics services fee from 
these aliens. DHS will contact applicants with pending applications and 
provide notice of the place, date and time of the biometrics 
appointment.
    DHS seeks comment on additional public safety related crimes that 
should bar (c)(8) EAD eligibility. See proposed 8 CFR 208.7 and 
274a.12(c)(8). Providing discretionary employment authorization to 
criminal aliens and aliens who have been convicted for serious crimes 
that offend public safety, and who have not been determined eligible 
for asylum.

D. Procedural Reforms

    DHS is proposing to clarify that USCIS has jurisdiction over all 
applications for employment authorization based on a pending or 
approved asylum application, regardless of whether USCIS or DOJ-EOIR 
has jurisdiction over the asylum case. DHS is also proposing several 
procedural changes to streamline the asylum adjudication process. 
Currently, most applications, petitions, and requests for immigration 
benefits have specific minimum requirements that must be met before the 
forms can be accepted for filing. DHS proposes to amend the regulations 
at 8 CFR 208.3 to remove the language providing that a Form I-589, 
Application for Asylum and for Withholding of Removal, will be deemed a 
complete, properly filed application if USCIS fails to return the 
incomplete Form I-589 to the alien within a 30-day period. See proposed 
8 CFR 208.333. This procedural change will require asylum applicants to 
file the asylum application in accordance with the requirements 
outlined in the regulations and form instructions and is consistent 
with the general principle that applicants and petitioners bear the 
burden of filing complete applications and petitions. Applications not 
properly filed are rejected and returned to the applicant with the 
reasons for the rejection, consistent with other forms.
    DHS also proposes to remove the language referring to ``recommended 
approvals'' of asylum applications and the benefits of such applicants 
who receive those notices. See proposed 8 CFR 208.3 and 274a.12(c)(8). 
Recipients of recommended approvals have not fully completed the asylum 
adjudication process. Previously, USCIS issued such notices even when 
all required background and security check results had not been 
received, and recipients of recommended approvals were eligible for 
employment authorization. However, because Congress has mandated that 
DHS not approve asylum applications until DHS has received and reviewed 
all the results of the required background and security checks, DHS has 
determined that continuing to issue recommended approval notices is 
contrary to this mandate.\77\ In addition,

[[Page 62391]]

USCIS believes it is an inefficient use of resources for USCIS to 
manage a separate processing regime, which requires USCIS to review the 
asylum application twice: First to determine if it is initially 
approvable as a ``recommended approval,'' and then again (after a 
recommended approval notice has been issued to the applicant) to ensure 
that the applicant remains eligible for asylum based on the results of 
the background and security checks. This change would enhance 
efficiency by removing duplicative case processing tasks and enhance 
the integrity of the overall asylum process because all information 
will be considered before issuance of the asylum decision
---------------------------------------------------------------------------

    \77\ See INA sec. 208(d)(5)(A)(i), 8 U.S.C. 1158(d)(5)(A)(i).
    (5) Consideration of asylum applications
    (A) Procedures.--The procedure established under paragraph (1) 
shall provide that--
    (i) asylum cannot be granted until the identity of the applicant 
has been checked against all appropriate records or databases 
maintained by the Attorney General and by the Secretary of State, 
including the Automated Visa Lookout System, to determine any 
grounds on which the alien may be inadmissible to or deportable from 
the United States, or ineligible to apply for or be granted asylum;
    (emphasis added).
---------------------------------------------------------------------------

    DHS is also proposing that any documentary evidence submitted fewer 
than 14 calendar days before the asylum interview (with allowance for a 
brief extension to submit additional evidence as a matter of 
discretion) may result in an applicant-caused delay if it delays the 
adjudication of the asylum application. The purpose of this provision 
is to improve administrative efficiency and aid in the meaningful 
examination and exploration of evidence in preparation for and during 
the interview.

E. Termination of Employment Authorization

    DHS proposes revising the rule governing when employment 
authorization terminates to provide that when USCIS or DOJ-EOIR denies 
an asylum application, the alien's employment authorization associated 
with the asylum application will be terminated automatically, effective 
on the date of denial of the asylum application.
1. Denial of Asylum Application by USCIS Asylum Officer
    Currently, the regulations at 8 CFR 208.7(b)(1) provide that an 
asylum applicant's employment authorization terminates within 60 days 
after a USCIS asylum officer denies the application or on the date of 
the expiration of the EAD, whichever is longer. DHS does not believe it 
is the will of Congress that aliens with denied asylum applications 
should continue to hold employment authorization once the asylum claim 
is denied. DHS therefore proposes that when a USCIS asylum officer 
denies an alien's request for asylum, any employment authorization 
associated with a pending asylum application will be automatically 
terminated effective on the date the asylum application is denied. 
Further, consistent with the current regulation, DHS proposes to 
exclude from eligibility aliens whose asylum applications have been 
denied by an asylum officer during the 365-day waiting period or before 
the adjudication of the initial employment authorization request.
    When a USCIS asylum officer refers an affirmative application to 
DOJ-EOIR, the asylum application remains pending, and the associated 
employment authorization remains valid while the IJ adjudicates the 
application. Aliens granted asylum by USCIS or an IJ no longer require, 
nor are they eligible for, a (c)(8) EAD, but they can apply for an EAD 
under 8 CFR 274a.12(a)(5) if they want documentation that reflects they 
are employment authorized.
2. Termination After Denial by IJ
    Currently, the regulations at 8 CFR 208.7(b)(2) provide that when 
an IJ denies an asylum application, the employment authorization 
terminates on the date the EAD expires, unless the asylum applicant 
seeks administrative or judicial review. DHS proposes instead that if 
the IJ denies the alien's asylum application, employment authorization 
will terminate 30 days after denial to allow time for appeal to the 
BIA. If a timely appeal is filed, employment authorization will be 
available to the alien during the BIA appeal process, but prohibited 
during the Federal court appeal process unless the case is remanded to 
DOJ-EOIR for a new decision. USCIS believes that restricting access to 
(c)(8) employment authorization during the judicial review process is 
necessary to ensure that aliens who have failed to establish 
eligibility for asylum during two or three levels of administrative 
review do not abuse the appeals processes in order to remain employment 
authorized. For the same reason, DHS proposes to exclude from 
eligibility aliens whose asylum applications have been denied by an IJ 
during the 365-day waiting period.
3. Automatic Extensions of Employment Authorization and Terminations
    To conform the automatic extension and termination provisions 
proposed under 8 CFR 208.7(b), DHS is also proposing amendments to the 
current regulations at 8 CFR 274a.13(d), which govern automatic 
extensions of employment authorization and termination of such 
extensions. If an asylum applicant's employment authorization will 
expire before the asylum officer, IJ, or the BIA renders a decision on 
the asylum application, under current regulations, the alien may file 
an application to renew the employment authorization. If the renewal 
EAD application is filed timely, the alien's employment authorization 
is extended automatically for up to 180 days or the date of the EAD 
decision, whichever comes first. As previously discussed, when a USCIS 
asylum officer, IJ, or the BIA denies the asylum application, any 
employment authorization would terminate on the date of the denial, 
except for the thirty-day appeal window for an alien to file an appeal 
before the BIA following an asylum application's denial by an IJ. This 
rule at proposed 8 CFR 208.7(b)(2) makes clear that employment 
authorization automatically terminates regardless of whether it is in a 
period of automatic extension. Therefore, the rule proposes conforming 
amendments at 8 CFR 274a.13(d)(3), specifying that automatic extensions 
would be automatically terminated upon a denial of the asylum 
application, or on the date the automatic extension expires (which is 
up to 180 days), whichever is earlier. See proposed 8 CFR 
274a.13(d)(3).
    DHS also proposes a technical change that would add a new paragraph 
at 8 CFR 274a.14(a)(1) to generally reference any automatic termination 
provision elsewhere in DHS regulations, including the automatic EAD 
termination provision being proposed by this rule.\78\ As 8 CFR 
274a.14(a)(1) is a general termination provision, DHS feels that 
incorporation of a general reference to other termination provisions 
would help avoid possible confusion regarding the applicability of such 
other provisions in relation to 8 CFR 274a.14(a)(1).
---------------------------------------------------------------------------

    \78\ See proposed 8 CFR 208.7(b)(2); see also 8 CFR 
214.2(f)(9)(ii)(F)(2) (automatic termination of F-1 student-based 
employment authorization based on economic necessary where the 
student fails to maintain status).
---------------------------------------------------------------------------

F. Aliens Who Have Established a Credible Fear or a Reasonable Fear of 
Persecution or Torture and Who Have Been Paroled Into the United States

    DHS proposes clarifying the rule governing employment eligibility 
for certain aliens who have been paroled into the United States after 
establishing a credible fear or reasonable fear of persecution or 
torture. See 8 CFR 208.30.

[[Page 62392]]

    In 2017, DHS issued a memo, ``Implementing the President's Border 
Security and Immigration Enforcement Improvement Policies,'' which 
stated that CBP or ICE will only consider the release of aliens from 
detention based on the parole authority under INA section 212(d)(5) on 
a case-by-case basis.\79\ One such case is when an arriving alien 
subject to expedited removal establishes a credible fear of persecution 
or torture, or eligibility for withholding of removal, adequately 
establishes his or her identity, does not pose a flight risk or danger 
to the community, and otherwise warrants parole as a matter of 
discretion. Currently, when DHS exercises its discretion to parole such 
aliens, officers are instructed to endorse the Form I-94 parole 
authorization with an express condition that employment authorization 
not be provided under 8 CFR 274a.12(c)(11) on the basis of the parole. 
This rule would conform the regulations to that important policy. DHS 
continues to believe that it would be an inconsistent policy to permit 
these asylum seekers released on parole to seek employment 
authorization without being subject to the same statutory requirements 
and waiting period as non-paroled asylum seekers. Therefore, this rule 
proposes to clarify, consistent with existing DHS policy, that 
employment authorization for this category of parolees is not 
immediately available under the (c)(11) category. Such aliens may still 
be eligible to apply for a (c)(8) employment authorization to become 
employment authorized subject to the eligibility changes proposed in 
this rule. DHS seeks public comment on this proposal and whether the 
(c)(11) category (parole-based EADs) should be further limited, such as 
to provide employment authorization only to those DHS determines are 
needed for foreign policy, law enforcement, or national security 
reasons, especially since parole is meant only as a temporary measure 
to allow an alien's physical presence in the United States until the 
need for parole is accomplished or the alien can be removed.
---------------------------------------------------------------------------

    \79\ See Secretary of Homeland Security John Kelly, 
``Implementing the President's Border Security and Immigration 
Enforcement Improvements Policies,'' Section K (Feb. 20, 2017), 
https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Implementing-the-Presidents-Border-Security-Immigration-Enforcement-Improvement-Policies.pdf.
---------------------------------------------------------------------------

G. Illegal Entry

    DHS proposes to exclude aliens from receiving a (c)(8) EAD if they 
enter or attempt to enter the United States illegally without good 
cause. Good cause is defined as a reasonable justification for entering 
the United States illegally as determined by the adjudicator on a case-
by-case basis. Since what may be a reasonable justification for one 
applicant may not be reasonable when looking at the circumstances of 
another applicant, DHS believes a case-by-case determination of good 
cause in a (c)(8) adjudication will incentivize aliens to comply with 
the law to the extent possible and avoid injury and death associated 
with illegal entries, and reduce government expenditures related to 
detecting, apprehending, processing, housing, and transporting 
escalating numbers of illegal entrants. To the extent that this change 
could be considered a ``penalty'' within the meaning of Article 31(1) 
of the 1951 Convention relating to the Status of Refugees, which is 
binding on the United States by incorporation in the 1967 Protocol 
relating to the Status of Refugees, DHS believes that it is consistent 
with U.S. obligations under the 1967 Protocol because it exempts aliens 
who establish good cause for entering or attempting to enter the United 
States at a place and time other than lawfully through a U.S. port of 
entry.
    The amendments to this section make any alien who entered or 
attempted to enter the United States at a place and time other than 
lawfully through a U.S. port of entry ineligible to receive a (c)(8) 
EAD, with the limited exception of when an alien demonstrates that he 
or she: (1) Presented himself or herself without delay to the Secretary 
of Homeland Security (or his or her delegate); and (2) indicated to a 
DHS agent or officer an intent apply for asylum or expressed a fear of 
persecution or torture; and (3) otherwise had good cause for the 
illegal entry or attempted entry. Examples of reasonable justifications 
for the illegal entry or attempted entry include, but are not limited 
to, requiring immediate medical attention or fleeing imminent serious 
harm, but would not include the evasion of U.S. immigration officers, 
or entering solely to circumvent the orderly processing of asylum 
seekers at a U.S. port of entry, or convenience. Asylum is a 
discretionary benefit that should be reserved only for those who are 
truly in need of the protection of the United States. It follows that 
work authorization associated with a pending asylum application should 
be similarly reserved.

H. Effective Date of the Final Rule

    The rules in effect on the date of filing Form I-765 will govern 
all initial and renewal applications for (c)(8) and (c)(11) employment 
authorization, with limited exceptions. DHS will apply two proposed 
provisions--ineligibility based on certain criminal offenses and 
failure to file the asylum application within one year--to initial and 
renewal applications for (c)(8) EAD's pending on the effective date of 
the final rule. In order to implement the criminal ineligibility 
provision, DHS will require applicants with a pending initial or 
renewal (c)(8) EAD application on the effective date of this rule to 
appear at an ASC for biometrics collection but DHS will not collect the 
biometrics services fee from these aliens. DHS will contact applicants 
with pending applications and provide notice of the place, date and 
time of the biometrics appointment. To ensure consistency with a 
separate proposed rule entitled ``Removal of 30-Day Processing 
Provision for Asylum Applicant-Related Form I-765 Employment 
Authorization Applications,'' DHS Docket No. USCIS-2018-0001, 84 FR 
47148 (Sept. 9, 2019), DHS proposes that this NPRM will not apply to 
initial applications filed before the effective date of this rule by 
members of the Rosario class. Under this proposal, DHS would 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 work authorized until the 
expiration date on their EAD, unless the card is terminated or revoked 
on grounds in existing regulations. This proposed rule will not have 
any impact on applications to replace lost, stolen, or damaged (c)(8) 
EADs. All (c)(11) EAD applications based on parole/credible fear that 
are received by USCIS on or after the date the final rule is effective 
will be denied, as that ground for employment authorization is 
inconsistent with INA 208(d)(2).

VI. Statutory and Regulatory Requirements

A. Executive Orders 12866 (Regulatory Planning and Review) and 13563 
(Improving Regulation and Regulatory Review)

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if a 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of

[[Page 62393]]

reducing costs, of harmonizing rules, and of promoting flexibility. 
This rule has been designated as a ``significant regulatory action'' 
that is economically significant, under section 3(f)(1) of Executive 
Order 12866. Accordingly, the Office of Management and Budget (OMB) has 
reviewed this rule.
1. Summary
    USCIS has considered alternatives and has undertaken a range of 
initiatives to address the asylum backlog and mitigate its consequences 
for asylum seekers, agency operations, and the integrity of the asylum 
system. These efforts include: (1) Revised scheduling priorities 
including changing from First in, First Out (``FIFO'') order processing 
to LIFO order; (2) staffing increases and retention initiatives; (3) 
acquiring new asylum division facilities; (4) assigning refugee 
officers to the Asylum Division; and (5) conducting remote 
screenings.\80\
---------------------------------------------------------------------------

    \80\ See Dep't of Homeland Security, 2018 Citizenship & 
Immigration Services Ombudsman Annual Report at 44.
---------------------------------------------------------------------------

     Revised Interview Scheduling Priorities: A significant 
scheduling change occurred in January 2018 with FIFO scheduling 
returning to LIFO scheduling order. Previously implemented in 1995, 
LIFO remained in effect until 2014. Under FIFO scheduling, USCIS 
generally processed affirmative asylum applications in the order they 
were filed. The now-operative LIFO scheduling methodology prioritizes 
newly-filed applications. Some offices already report a 25 percent drop 
in affirmative asylum filings since implementation of the LIFO 
scheduling system in January 2018.\81\
---------------------------------------------------------------------------

    \81\ Id. at 45.
---------------------------------------------------------------------------

     Staffing Increases and Retention Initiatives: Since 2015, 
USCIS has increased the number of asylum officer positions by more than 
50 percent, from 448 officers authorized for FY 2015 to 686 officers 
authorized for FY 2018. Along with these staffing enhancements, USCIS 
increased the frequency with which it offered its Combined Training and 
Asylum Division Officer Training Course. Moreover, to address asylum 
officer turnover, USCIS has made efforts to increase telework options 
and expand opportunities for advancement.\82\
---------------------------------------------------------------------------

    \82\ Id. at 46.
---------------------------------------------------------------------------

     New Asylum Division Facilities: The Asylum Division also 
expanded its field operations, opening sub-offices in Boston, New 
Orleans, and Arlington, VA. Its most significant expansion, however, is 
just getting underway. Currently, the Asylum Division is establishing 
an asylum vetting center--distinct from the planned DHS-wide National 
Vetting Center--in Atlanta, Georgia. This center will allow for the 
initiation of certain security checks from a central location, rather 
than at individual asylum offices, in an effort to alleviate the 
administrative burden on asylum officers and to promote vetting and 
processing efficiency. USCIS has already begun hiring for the center, 
which will ultimately staff approximately 300 personnel, composed of 
both asylum and Fraud Detection and National Security Directorate 
(FDNS) positions. USCIS expects completion of the center's construction 
in 2020.\83\
---------------------------------------------------------------------------

    \83\ Id.
---------------------------------------------------------------------------

     Remote Screenings: Telephonic and Videoconference: In 
2016, the Asylum Division established a sub-office of the Arlington 
Asylum Office dedicated to adjudicating credible and reasonable fear 
claims. This sub-office performs remote (primarily telephonic) 
screenings of applicants who are located in detention facilities 
throughout the country. The Asylum Division states that its practice of 
performing remote telephonic screenings of credible and reasonable fear 
claims have enhanced processing efficiency since implementation. These 
screenings allow asylum offices greater agility and speed in reaching 
asylum seekers whose arrival patterns in the United States are not 
always predictable and who may be detained at remote detention 
facilities.\84\
---------------------------------------------------------------------------

    \84\ Id.
---------------------------------------------------------------------------

     Refugee Officers Assigned to the Asylum Division: 
Throughout 2018, USCIS had approximately 100 refugee officers serving 
12-week assignments with the Asylum Division at any given time. These 
refugee officers are able to interview affirmative asylum cases, 
conduct credible fear and reasonable fear screenings, and provide 
operational support. USCIS now assigns refugee officers both to asylum 
offices and DHS's family residential centers.\85\
---------------------------------------------------------------------------

    \85\ Id. at. 46-47.
---------------------------------------------------------------------------

    A simple regulatory alternative to extending the waiting period to 
365 days and strengthening eligibility requirements is rescinding work 
authorization for asylum applicants altogether, which is permissible 
under INA 208(d)(2). This too would reduce pull factors and alleviate 
the asylum backlog. However, DHS seeks to balance deterrence of those 
abusing the asylum process for economic purposes and providing more 
timely protection to those who merit such protection, which includes 
immediate and automatic employment authorization when the asylum 
application is granted. DHS believes the proposed amendments in this 
rule strike a greater balance between these two goals. The proposed 
amendments build upon a carefully planned and implemented comprehensive 
backlog reduction plan and amends the (c)(8) EAD process so that those 
with bona fide asylum claims can be prioritized and extended the 
protections, including employment authorization, that the United States 
offers to aliens seeking refuge from persecution or torture.
a. Baseline
    The impacts of this rule are measured against a baseline. This 
baseline is the best assessment of the way the world would look absent 
this proposed action. The table below explains each of the proposed 
provisions of this rule, and the baseline against which the change is 
measured.

[[Page 62394]]



                                   Table 4--Baseline and Proposal by Provision
----------------------------------------------------------------------------------------------------------------
            Description                  CFR Citation               Proposal                    Baseline
----------------------------------------------------------------------------------------------------------------
                           Provisions that affect asylum and employment authorization
----------------------------------------------------------------------------------------------------------------
Eliminate the issuance of           8 CFR 208.7; 8 CFR     USCIS would no longer       Aliens who have received
 ``Recommended Approvals'' for a     274a.12.               issue grants of             a notice of recommended
 grant of affirmative asylum.                               recommended approvals as    approval are able to
                                                            a preliminary decision      request employment
                                                            for affirmative asylum      authorization prior to
                                                            adjudications. As such,     the end of the waiting
                                                            aliens who previously       period for those with
                                                            could apply early for an    pending asylum
                                                            EAD based on a              applications.
                                                            recommended approval now
                                                            will be required either
                                                            to wait 365 days before
                                                            they could apply for an
                                                            EAD, or wait until they
                                                            are granted asylum (if
                                                            the asylum grant occurs
                                                            earlier than 365 days).
``Complete'' asylum applications..  8 CFR 208.3..........  Removing outdated           Application for asylum is
                                                            provision that              automatically deemed
                                                            application for asylum      ``complete'' if USCIS
                                                            will automatically be       fails to return the
                                                            deemed ``complete'' if      incomplete application
                                                            USCIS fails to return the   to the alien within a 30-
                                                            incomplete application to   day period.
                                                            the alien within a 30-day
                                                            period.
Eligibility for Employment          8 CFR 208.4; 8 CFR     Examples of applicant-      No 14-day regulatory
 Authorization--Applicant-caused     208.9.                 caused delays include,      restriction on how close
 delay.                                                     but are not limited to      to an asylum interview
                                                            the list below.             applicants can submit
                                                            A request to        additional evidence.
                                                            amend a pending
                                                            application for asylum or
                                                            to supplement such an
                                                            application if unresolved
                                                            on the date the (c)(8)
                                                            EAD application is
                                                            adjudicated;.
                                     An
                                     applicant's failure
                                     to appear to receive
                                     and acknowledge
                                     receipt of the
                                     decision following
                                     an interview and a
                                     request for an
                                     extension to submit
                                     additional evidence,
                                     and;.
                                     Submitting
                                     additional
                                     documentary evidence
                                     fewer than 14
                                     calendar days prior
                                     to interview.
----------------------------------------------------------------------------------------------------------------
                              Provisions that affect employment authorization only
----------------------------------------------------------------------------------------------------------------
365-day wait......................  8 CFR 208.7..........  All aliens seeking a        150-day waiting period
                                                            (c)(8) EAD based on a       plus applicant-caused
                                                            pending asylum              delays that toll the 180-
                                                            application wait 365        day EAD clock.
                                                            calendar days from the
                                                            receipt of their asylum
                                                            application before they
                                                            can file an application
                                                            for employment
                                                            authorization.
Revise eligibility for employment   8 CFR 208.7..........  Exclude from (c)(8) EAD     No such restriction.
 authorization--One Year Filing                             eligibility aliens who
 Deadline.                                                  have failed to file for
                                                            asylum for one year
                                                            unless and until an
                                                            asylum officer or IJ
                                                            determines that an
                                                            exception to the
                                                            statutory requirement to
                                                            file for asylum within
                                                            one year applies.
Revise eligibility for employment   8 CFR 208.7..........  In addition to aggravated   Aggravated felons are not
 authorization--Criminal                                    felons, also exclude from   eligible.
 Convictions.                                               (c)(8) eligibility aliens
                                                            who have committed
                                                            certain lesser criminal
                                                            offenses.
Revise eligibility for employment   8 CFR 208.7..........  Exclude from (c)(8)         No such restriction.
 authorization--Illegal Entry.                              eligibility aliens who
                                                            entered or attempted to
                                                            enter the United States
                                                            at a place and time other
                                                            than lawfully through a
                                                            U.S. port of entry, with
                                                            limited exceptions.

[[Page 62395]]


Termination of EAD after Asylum     8 CFR 208.7..........  When a USCIS asylum         An asylum applicant's EAD
 Denial or Dismissal by USCIS                               officer denies or           terminates within 60
 Asylum Officer.                                            dismisses an alien's        days after a USCIS
                                                            request for asylum, the     asylum officer denies
                                                            (c)(8) EAD would be         the application or on
                                                            terminated effective on     the date of the
                                                            the date the asylum         expiration of the EAD,
                                                            application is denied. If   whichever is longer.
                                                            a USCIS asylum officer      When an asylum officer
                                                            refers the case to an IJ    refers an affirmative
                                                            and places the alien in     application to an IJ,
                                                            removal proceedings,        the application remains
                                                            employment authorization    pending and the
                                                            will be available to the    associated EAD remains
                                                            alien while the IJ          valid while the IJ
                                                            adjudicates the asylum      adjudicates the
                                                            application.                application.
Termination of EAD after Asylum     8 CFR 208.7..........  If the IJ denies the        8 CFR 208.7(b)(2)
 Denial by IJ.                                              asylum application,         provides that when an IJ
                                                            employment authorization    denies an asylum
                                                            would continue for 30       application, the EAD
                                                            days after the date the     terminates on the date
                                                            IJ denies the application   the EAD expires, unless
                                                            to allow for appeal to      the asylum applicant
                                                            the BIA. If the alien       seeks administrative or
                                                            files a timely appeal of    judicial review.
                                                            the denied asylum
                                                            application with the BIA,
                                                            employment authorization
                                                            eligibility would
                                                            continue through the BIA
                                                            appeal.
Termination of EAD after Asylum     8 CFR 208.7..........  Employment authorization    Asylum applicants are
 Denial Affirmed by the BIA.                                would not be granted        currently allowed to
                                                            after the BIA affirms a     renew their (c)(8) EADs
                                                            denial of the asylum        while their cases are
                                                            application and while the   under review in Federal
                                                            case is under review in     court.
                                                            Federal court, unless the
                                                            case is remanded to DOJ-
                                                            EOIR for a new decision.
Eligibility for Employment          8 CFR 208.10.........  An applicant's failure to   No such restriction.
 Authorization--Failure to appear.                          appear for an asylum
                                                            interview or biometric
                                                            services appointment may
                                                            lead to the dismissal or
                                                            referral of his or her
                                                            asylum application and
                                                            may be deemed an
                                                            applicant-caused delay
                                                            affecting employment
                                                            authorization eligibility.
Limit EAD validity periods........  8 CFR 208.7..........  USCIS will, in its          No such restriction.
                                                            discretion, determine
                                                            validity periods for
                                                            initial and renewal EADs
                                                            but such periods will not
                                                            exceed two years. USCIS
                                                            may set shorter validity
                                                            periods.
Incorporate biometrics              8 CFR 208.7..........  Asylum applicants applying  No such requirement.
 requirements into the employment                           for (c)(8) employment       However, there is a
 authorization process for asylum                           authorization must submit   requirement to submit
 seekers.                                                   biometrics at a scheduled   biometrics with an
                                                            biometrics services         asylum application.
                                                            appointment. This
                                                            requirement would also
                                                            apply to applicants with
                                                            a pending initial or
                                                            renewal (c)(8) EAD
                                                            application on the
                                                            effective date of this;
                                                            though DHS will not
                                                            collect the biometric
                                                            services fee from these
                                                            aliens.
Eligibility for Employment          8 CFR 274a.12........  Aliens who have been        Consistent with current
 Authorization--aliens who have                             paroled into the United     DHS policy guidance.
 been paroled after being found to                          States after being found
 have a credible fear of                                    to have credible fear or
 persecution or torture.                                    reasonable fear of
                                                            persecution or torture
                                                            may not apply for
                                                            employment authorization
                                                            under 8 CFR
                                                            274a.12(c)(11). They may,
                                                            however, continue to
                                                            apply for an EAD under 8
                                                            CFR 274a.12(c)(8) if
                                                            their asylum application
                                                            has been; pending for
                                                            more than 365 days and
                                                            they meet the remaining
                                                            eligibility requirements.
Application for EAD...............  8 CFR 274a.13........  Clarifying that EAD         N/A.
                                                            applications must be
                                                            filed in accordance with
                                                            the general filing
                                                            requirements in 8 CFR
                                                            103.2(a), 208.3, and
                                                            208.4.
Application for EAD...............  8 CFR 274a.13(a)(1)..  Provides USCIS discretion   Current regulations do
                                                            to grant (c)(8) EAD         not give the agency
                                                            applications consistent     discretion to issue
                                                            with INA 208(d)(2).         (c)(8) EADs. 8 CFR
                                                                                        274a.13(a)(1) currently
                                                                                        states: The approval of
                                                                                        applications filed under
                                                                                        8 CFR 274a.12(c), except
                                                                                        for 8 CFR 274a.12(c)(8),
                                                                                        are within the
                                                                                        discretion of USCIS.

[[Page 62396]]


Application for EAD--automatic      8 CFR 274a.13(d)(3);   For asylum applications     For asylum applications
 extensions and automatic            8 CFR 208.7(b)(2).     denied, any EAD that was    denied, any EAD that was
 terminations.                                              automatically extended      automatically extended
                                                            pursuant to 8 CFR           pursuant to 8 CFR
                                                            274a.13(d)(1) based on a    274a.13(d)(1) will
                                                            timely filed renewal        terminate at the
                                                            application will            expiration of the EAD or
                                                            automatically terminate     60 days after the denial
                                                            on the date the asylum      of asylum, whichever is
                                                            officer, the IJ, or BIA     longer.
                                                            denies the asylum
                                                            application, or on the
                                                            date the automatic
                                                            extension expires (which
                                                            is up to 180 days),
                                                            whichever is earlier.
Cross-reference to any automatic    8 CFR 274a.14........  Cross-reference to any      N/A.
 termination provision.                                     automatic termination
                                                            provision elsewhere in
                                                            DHS regulations,
                                                            including the automatic
                                                            termination provision
                                                            being proposed by this
                                                            rule.
Specify the effective date........  .....................  EAD applications,           N/A.
                                                            including renewals, filed
                                                            on or after the effective
                                                            date will be adjudicated
                                                            under the rule, except
                                                            for the criminal and one-
                                                            year-filing bar
                                                            provisions, and except
                                                            for initial applications
                                                            filed by Rosario class
                                                            members.
----------------------------------------------------------------------------------------------------------------

b. Costs and Benefits
    This proposed rule amends the (c)(8) EAD system so that those with 
bona fide asylum claims can be prioritized and extended the 
protections, including employment authorization, that United States 
offers to aliens seeking refugee from persecution by reducing the 
asylum backlog. The provisions seek to reduce the incentives for aliens 
to file frivolous, fraudulent, or otherwise non-meritorious asylum 
applications primarily to obtain employment authorization or other, 
non-asylum-based forms of relief from removal, and remain for years in 
the United States for economic purposes.
    The quantified maximum population this rule would apply to is about 
305,000 aliens in the first year the rule could take effect and about 
290,000 annually thereafter. DHS assessed the potential impacts from 
this rule overall, as well as the individual provisions, and provides 
quantitative estimates of such impacts where possible and relevant. For 
the provisions involving biometrics and the removal of recommended 
approvals, the quantified analysis covers the entire populations. For 
the 365-day EAD filing time proposal, the quantified analysis also 
covers the entire population; however, DHS relies on historical data to 
estimate the costs for affirmative cases and certain assumptions to 
provide a maximum potential estimate for the remaining affected 
population. For the provisions that would potentially end some EADs 
early, DHS could estimate only the portion of the costs--those 
attributable to affirmative cases--because DHS has no information 
available to estimate the number of defensive cases affected.
    DHS provides a qualitative analysis of the provisions proposing to 
remove employment eligibility for asylum applicants under the (c)(11) 
category; terminate EADs earlier for asylum cases denied/dismissed by 
an IJ, and; bar employment authorization for asylum applicants with 
certain criminal history, who did not enter at a U.S. port of entry, or 
who, with little exception, did not file for asylum within one year of 
their last arrival to the United States. As described in more detail in 
the unquantified impacts section, DHS does not have the data necessary 
to quantify the impacts of these provisions.
    To take into consideration uncertainty and variation in the wages 
that EAD holders earn, all of the monetized costs rely on a lower and 
upper bound, benchmarked to a prevailing minimum wage and a national 
average wage, which generates a range. Specific costs related to the 
provisions proposed are summarized in Table 5. For the four provisions 
in which the impacts, or a portion of the impacts, could be monetized, 
the single midpoint figure for the wage-based range is presented.\86\
---------------------------------------------------------------------------

    \86\ The populations reported in Table 55 reflect the maximum 
population that would be covered by the provision. Some of the 
populations that would incur monetized impacts are slightly 
different due to technical adjustments.

      Table 5--Summary of Costs and Transfers of the Proposed Rule
------------------------------------------------------------------------
                                      Annual costs and transfers (mid-
         Provision summary                         point)
------------------------------------------------------------------------
III. Quantified:
    365-day EAD filing wait period  Population: 39,000.
     (for DHS affirmative asylum    Cost: $542.7 million (quantified
     cases and partial estimates     impacts for 39,000 of the 153,458
     for DHS referrals to DOJ).      total population).
                                    Reduction in employment tax
                                     transfers: $83.2 million
                                     (quantified impacts for 39,000 of
                                     the 153,458).
                                    Cost basis: Annualized equivalence
                                     cost.
                                    Summary: Lost compensation for a
                                     portion of DHS asylum cases that
                                     benefitted from initial EAD
                                     approvals who would have to wait
                                     longer to earn wages under the
                                     proposed rule; nets out cost-
                                     savings for persons who would no
                                     longer file under the rule;
                                     includes partial estimate of DHS
                                     referral cases to DOJ-EOIR and the
                                     apropos estimated tax transfers. It
                                     does not include impacts for
                                     defensively filed cases.
    Biometrics requirement........  Population for initial and renewal
                                     EADs: 289,751.
                                    Population for pending EADs: 14,451.
                                    Cost: $37,769,580.
                                    Reduction in employment tax
                                     transfers: None.

[[Page 62397]]


                                    Cost basis: Maximum costs of the
                                     provision, which would apply to the
                                     first year the rule could take
                                     effect.
                                    Summary: For initial and renewal
                                     EADs, there would be time-related
                                     opportunity costs plus travel costs
                                     of submitting biometrics, as well
                                     as $85 fee for (c)(8) I-765 initial
                                     and renewal populations subject to
                                     the biometrics and fee
                                     requirements. A small filing time
                                     burden to answer additional
                                     questions and read associated form
                                     instructions in the I-765 is
                                     consolidated in this provision's
                                     costs. There would also be time-
                                     related opportunity costs plus
                                     travel costs of submitting
                                     biometrics for EADs pending on the
                                     effective date of the final rule.
    Eliminate recommended           Population: 1,930 annual.
     approvals.                     Cost: $13,907,387.
                                    Reduction in employment tax
                                     transfers: $2,127,830.
                                    Cost basis: Annualized equivalence
                                     cost.
                                    Summary: Delayed earnings and tax
                                     transfers that would have been
                                     earned for an average of 52
                                     calendar days earlier with a
                                     recommended approval.
    Terminate EADs if asylum        Population: 575 (current and
     application denied/dismissed    future).
     (DHS).                         Cost: $31,792,569.
                                    Reduction in employment tax
                                     transfers: $4,864,263.
                                    Cost basis: Maximum costs of the
                                     provision, which would apply to the
                                     first year the rule could take
                                     effect.
                                    Summary: Forgone earnings and tax
                                     transfers from ending EADs early
                                     for denied/dismissed DHS
                                     affirmative EADs asylum
                                     applications. This change would
                                     affect EADs that are currently
                                     valid and EADs for affirmative
                                     asylum applications in the future
                                     that would not be approved. DHS
                                     acknowledges that as a result of
                                     this proposed change, businesses
                                     that have hired such workers would
                                     incur labor turnover costs earlier
                                     than without this rule.
    365-day EAD filing wait period  Population: 114,458.
     (for the residual population). Cost: $1,189.6 million--$3,600.4
                                     million (quantified impacts for the
                                     remaining 114,458 of the 153,458).
                                    Reduction in employment tax
                                     transfers: $182.0 million--$550.9
                                     million (quantified impacts for the
                                     remaining 114,458 of the 153,458).
                                    Cost basis: Annualized equivalence
                                     cost.
                                    Summary: Lost compensation for the
                                     population of approved annual EADs
                                     for which DHS does not have data to
                                     make a precise cost estimate; The
                                     costs reported are a maximum
                                     because the potential impact is
                                     based on the maximum impact of 151
                                     days; in reality there would be
                                     lower-cost segments to this
                                     population and filing-cost savings
                                     as well.
IV. Unquantified:
    Revise (c)(11) category from I- Population: 13,000.
     765.                           Cost: delayed/foregone earnings.
                                    Cost basis: NA.
                                    Summary: DHS does not know how many
                                     of the affected population will
                                     apply for an EAD via the (c)(8) I-
                                     765, but the population would be
                                     zero at a minimum and 13,000 at a
                                     maximum, with a mid-point of 6,500.
                                     The population would possibly incur
                                     delayed earnings and tax transfers
                                     by being subject to the 365-day EAD
                                     clock (it is noted that this
                                     population would also incur costs
                                     under the biometrics provision,
                                     above), or lost earnings if they do
                                     not apply for a (c)(8) EAD. There
                                     is potentially countervailing cost-
                                     savings due to a reduced pool of
                                     filers under the proposed rule.
    Criminal activity/illegal       DHS is unable to estimate the number
     entry bar.                      of aliens impacted. Impacts could
                                     involve forgone earnings and lost
                                     taxes.
    Adjudication of pending (c)(8)  DHS cannot determine how many of the
     I-765 under the criminal and    14,451 pending EAD filings would be
     one-year-filing provisions.     impacted by the criminal and one-
                                     year-filing provisions. Impacts
                                     could involve forgone earning and
                                     tax transfers.
    One-year filing deadline......  Some portion of the 8,472 annual
                                     filing bar referrals could be
                                     impacted, which could comprise
                                     deferred/delayed or forgone earning
                                     and tax transfers. DHS does not
                                     have data on filing bar cases
                                     referred to DOJ-EOIR.
Terminate EADs if asylum            DOJ-EOIR has denied an average of
 application denied/dismissed (DOJ-  almost 15,000 asylum cases
 EOIR).                              annually; however, DHS does not
                                     have data on the number of such
                                     cases that have an EAD. Costs would
                                     involve forgone earnings and tax
                                     transfers for any such EADs that
                                     would be terminated earlier than
                                     they otherwise would, as well as
                                     forgone future earnings and tax
                                     transfers. DHS acknowledges that as
                                     a result of this proposed change,
                                     businesses that have hired such
                                     workers would incur labor turnover
                                     costs earlier than without this
                                     rule.
Renewal EADS......................  The proposed rule would impose the
                                     conditions in the rule to renewal
                                     filers. Some may be delayed or
                                     precluded from renewing their EADs,
                                     or incur Form I-765 filing fees and
                                     opportunity costs for re-filing.
------------------------------------------------------------------------

    For those provisions that affect the time an asylum applicant is 
employed, the impacts of this rule would include both distributional 
effects (which are transfers) and costs.\87\ The distributional impacts 
would fall on the asylum applicants who would be delayed in entering 
the U.S. labor force or who would leave the labor force earlier than 
under current regulations. The distributional impacts (transfers) would

[[Page 62398]]

be in the form of lost compensation (wages and benefits). A portion of 
this lost compensation might be transferred from asylum applicants to 
others that are currently in the U.S. labor force, or, eligible to work 
lawfully, possibly in the form of additional work hours or the direct 
and indirect added costs associated with overtime pay. A portion of the 
impacts of this rule would also be borne by companies that would have 
hired the asylum applicants had they been in the labor market earlier 
or who would have continued to employ asylum applicants had they been 
in the labor market longer, but were unable to find available 
replacement labor. These companies would incur a cost, as they would be 
losing the productivity and potential profits the asylum applicant 
would have provided. Companies may also incur opportunity costs by 
having to choose the next best alternative to the immediate labor the 
asylum applicant would have provided. USCIS does not know what this 
next best alternative may be for those companies. As a result, USCIS 
does not know the portion of overall impacts of this rule that are 
transfers or costs, but estimated the maximum monetized impact of this 
rule in terms of delayed/lost labor compensation. If all companies are 
able to easily find reasonable labor substitutes for the positions the 
asylum applicant would have filled, they will bear little or no costs, 
so $4,461.9 million (annualized at 7%) will be transferred from asylum 
applicants to workers currently in the labor force or induced back into 
the labor force (we assume no tax losses as a labor substitute was 
found). Conversely, if companies are unable to find reasonable labor 
substitutes for the position the asylum applicant would have filled 
then $4,461.9 million is the estimated maximum monetized cost of the 
rule that could be a transfer, and $0 is the estimated minimum in 
monetized transfers from asylum applicants to other workers. In 
addition, under this scenario, because the jobs would go unfilled there 
would be a loss of employment taxes to the Federal Government. USCIS 
estimates $682.9 million as the maximum decrease in employment tax 
transfers from companies and employees to the Federal Government. The 
two scenarios described above represent the estimated endpoints for the 
range of monetized impacts resulting from the provisions that affect 
the amount of time an asylum applicant is employed. USCIS notes that 
given that the U.S. unemployment rate is hovering around a 50-year 
low--at 3.7% as of August 2019--it could be possible that employers may 
face difficulties finding reasonable labor substitutes. DHS does note 
that an alternative measure of the unemployment rate from the Bureau of 
Labor Statistics (the U-6) provides additional information on the labor 
market not found in the official unemployment rate (the U-3). The U-6 
rate is a broader measure of labor underutilization and takes into 
account workers not included in the official U-3 rate that could 
potentially benefit from this rule. For example, the U-6 rate considers 
persons who are neither working nor looking for work but indicate they 
want and are available for a job and have looked for work sometime in 
the past twelve months and also considers part-time workers who 
otherwise want and are available for full time employment. The U-6 rate 
shows unemployment at 7.2 percent, which is much higher than the 
official U-3 rate of 3.7 percent. \88\
---------------------------------------------------------------------------

    \87\ Transfer payments are monetary payments from one group to 
another that do not affect total resources available to society. See 
OMB Circular A-4 pages 14 and 38 for further discussion of transfer 
payments and distributional effects. Circular A-4 is available at: 
https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf.
    \88\ The full definition of the U-3 and U-6 unemployment rates 
can be found on the Bureau of Labor Statistics (BLS) website under 
the ``Local Area Unemployment Statistics (LAUS),'' at: https://www.bls.gov/lau/stalt.htm. The actual figures for the U-3 and U-6 
unemployment rates are found in table A-15, ``Alternative Measures 
of Labor Underutilization,'' in the Economic News Release Archives 
at: https://www.bls.gov/news.release/archives/empsit_09062019.htm.
    \89\ See Table A-8, ``Employed Persons by Class of Worker and 
Part-Time Status'', Persons at work part time for economic reasons: 
https://www.bls.gov/news.release/archives/empsit_09062019.htm.
    \90\ See Table A-16, ``Persons not in the labor force and 
multiple jobholders by sex, not seasonally adjusted'', Persons 
marginally attached to the labor force: https://www.bls.gov/news.release/archives/empsit_09062019.htm.>
---------------------------------------------------------------------------

    Included in the broader U-6 unemployment rate is the number of 
persons employed part time for economic reasons (sometimes referred to 
as involuntary part-time workers), which BLS estimates is 4.4 million 
in August 2019. These individuals, who would have preferred full-time 
employment, were working part time because their hours had been reduced 
or they were unable to find full-time jobs.\89\ In addition, BLS 
reports for August 2019 that 1.6 million persons were marginally 
attached to the labor force. These individuals were not in the labor 
force, wanted and were available for work, and had looked for a job 
sometime in the prior 12 months. They were not counted as unemployed in 
the official U-3 unemployment rate because they had not searched for 
work in the 4 weeks preceding the BLS survey, but are counted in the U-
6 rate.\90\ The U-6 rate provides additional evidence that U.S. workers 
might be available to substitute into the jobs that asylum applicants 
currently hold.

[[Page 62399]]

    Because the biometrics requirement proposed in this rule is a cost 
to applicants and not a transfer, its minimum value of $27.17 million 
is the minimum cost of the rule. The range of impacts described by 
these two scenarios, plus the consideration of the biometrics costs, 
are summarized in Table 6 below (Table 6A and 6B capture the impacts a 
3 and 7 percent rates of discount, in order).

                                            Table 6A--Summary of Range of Monetized Annualized Impacts at 3%
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      Scenario: No replacement labor    Scenario: All asylum applicants      Primary
                                                                        found for asylum applicants       replaced with other workers    (average of the
                                                                    --------------------------------------------------------------------   highest high
                Category                         Description                                                                              and the lowest
                                                                         Low wage        High wage         Low wage        High wage      low, for each
                                                                                                                                               row)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Transfers:
    Transfers--Compensation............  Compensation transferred              $0.00            $0.00   $1,473,953,451   $4,461,386,308   $2,230,693,154
                                          from asylum applicants to
                                          other workers
                                          (provisions: 365-day wait
                                          + end EADs early + end
                                          recommended approvals).
    Transfers--Taxes...................  Lost employment taxes paid      225,587,337      682,771,643             0.00             0.00      341,385,822
                                          to the Federal Government
                                          (provisions: 365-day wait
                                          + end EADs early + end
                                          recommended approvals).
Costs:
    Cost Subtotal--Biometrics..........  Biometrics Requirements...       27,154,124       45,726,847       27,154,124       45,726,847       36,440,486
    Cost Subtotal--Lost Productivity...  Lost compensation used as     1,473,953,451    4,461,386,308             0.00             0.00    2,230,693,154
                                          proxy for lost
                                          productivity to companies
                                          (provisions: 365-day wait
                                          + end EADs early + end
                                          recommended approvals).
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
        Total Costs....................                                1,501,107,576    4,507,113,155       27,154,124       45,726,847    2,267,133,639
--------------------------------------------------------------------------------------------------------------------------------------------------------


                                            Table 6B--Summary of Range of Monetized Annualized Impacts at 7%
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      Scenario: No replacement labor    Scenario: All asylum applicants      Primary
                                                                        found for asylum applicants       replaced with other workers    (average of the
                                                                    --------------------------------------------------------------------   highest high
                Category                         Description                                                                              and the lowest
                                                                         Low wage        High wage         Low wage        High wage      low, for each
                                                                                                                                               row)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Transfers:
    Transfers--Compensation............  Compensation transferred              $0.00            $0.00   $1,474,123,234   $4,461,900,172   $2,230,950,086
                                          from asylum applicants to
                                          other workers
                                          (provisions: 365-day wait
                                          + end EADs early + end
                                          recommended approvals).
    Transfers--Taxes...................  Lost employment taxes paid      225,613,314      682,850,264                0                0      341,425,132
                                          to the Federal Government
                                          (provisions: 365-day wait
                                          + end EADs early + end
                                          recommended approvals).
Costs:
    Cost Subtotal--Biometrics..........  Biometrics Requirements...       27,171,858       45,766,847       27,171,858       45,766,847       36,469,352
    Cost Subtotal--Lost Productivity...  Lost compensation used as     1,474,123,234    4,461,900,172             0.00             0.00    2,230,950,086
                                          proxy for lost
                                          productivity to companies
                                          (provisions: 365-day wait
                                          + end EADs early + end
                                          recommended approvals).
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
        Total Costs....................                                1,501,295,093    4,507,667,018       27,171,858       45,766,847    2,267,419,438
--------------------------------------------------------------------------------------------------------------------------------------------------------

    As required by Office of Management and Budget (OMB) Circular A-4, 
Table 7 presents the prepared A-4 accounting statement showing the 
costs associated with this proposed regulation:

[[Page 62400]]



                                                          Table 7--OMB A-4 Accounting Statement
                                                   [$ millions, 2019] [Period of analysis: 2019-2028]
--------------------------------------------------------------------------------------------------------------------------------------------------------

--------------------------------------------------------------------------------------------------------------------------------------------------------
Category                                            Primary estimate                Minimum         Maximum  Source citation
                                                                                   estimate        estimate  (RIA, preamble, etc.)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Benefits:
    Monetized Benefits.....................            (7%)             N/A             N/A             N/A  RIA.
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
                                                       (3%)             N/A             N/A            N/A.
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
    Annualized quantified, but un-                         N/A                          N/A             N/A  RIA.
     monetized, benefits.
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
Unquantified Benefits......................    The benefits potentially realized by the proposed rule are    RIA.
                                              qualitative and accrue to a streamlined system for employment
                                               authorizations for asylum seekers that would reduce fraud,
                                                improve overall integrity and operational efficiency, and
                                              prioritize aliens with bona fide asylum claims. These impacts
                                              stand to provide qualitative benefits to asylum seekers, the
                                                   communities in which they reside and work, the U.S.
                                               Government, and society at large. The proposed rule aligns
                                              with the Administration's goals of strengthening protections
                                              for U.S. workers in the labor market. The proposed biometrics
                                                   requirement would enhance identity verification and
                                                                       management.
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
Costs:
Annualized monetized costs (discount rate              (7%)         2,267.4           27.17         4,507.7  RIA.
 in parenthesis).
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
                                                       (3%)         2,267.1           27.17         4,507.1  RIA.
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
Annualized quantified, but un-monetized,                   N/A                          N/A             N/A  RIA.
 costs.
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
    Qualitative (unquantified) costs.......    In cases where companies cannot find reasonable substitutes   RIA.
                                                for the labor the asylum applicants would have provided,
                                                affected companies would also lose profits from the lost
                                              productivity. In all cases, companies would incur opportunity
                                                 costs by having to choose the next best alternative to
                                             immediately filling the job the pending asylum applicant would
                                                have filled. There may be additional opportunity costs to
                                              employers such as search costs. There could also be a loss of
                                                      Federal, state, and local income tax revenue.
                                               Estimates of costs to proposals that would involve DOJ-EOIR
                                              defensively-filed asylum applications and DHS-referrals could
                                             not be made due to lack of data. Potential costs would involve
                                               delayed/deferred or forgone earnings, and possible lost tax
                                                                        revenue.
                                             There would also be delayed or forgone labor income and tax     RIA.
                                             transfers for pending EAD applicants impacted by the criminal
                                             and one-year filing provisions, renewal applicants, transfers
                                             from the (c)(11) group, and filing bar cases, all of whom
                                             would be subject to some of the criteria being proposed; in
                                             addition, such impacts could also affect those who would be
                                             eligible currently for an EAD but would be ineligible for an
                                             EAD, or have such eligibility terminated earlier, under the
                                             proposed rule.
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
Transfers:
    Annualized monetized transfers: ``on               (7%)               0               0               0  RIA.
     budget''.
                                            ----------------------------------------------------------------
                                                       (3%)               0               0               0
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
    From whom to whom?.....................                                N/A
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
    Annualized monetized transfers:                    (7%)         2,231.0               0         4,461.9  RIA.
     compensation.
                                            ----------------------------------------------------------------
                                                       (3%)         2,230.7               0         4,461.4
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
    From whom to whom?.....................     Compensation transferred from asylum applicants to other     RIA.
                                                workers (provisions: 365-day wait + end EADs early + end
                                                 recommended approvals). Some of the deferred or forgone
                                                 earnings could be transferred from asylum applicants to
                                             workers in the U.S. labor force or induced into the U.S. labor
                                             force. Additional distributional impacts from asylum applicant
                                               to the asylum applicant's support network that provides for
                                                 the asylum applicant while awaiting an EAD; these could
                                                involve burdens to asylum applicants' personal private or
                                                 familial support system, but could also involve public,
                                               private, or charitable benefits-granting agencies and non-
                                                           governmental organizations (NGOs).
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
    Annualized monetized transfers: taxes..            (7%)           341.4               0           682.9  RIA.
                                            ----------------------------------------------------------------
                                                       (3%)           341.4               0           682.8
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
    From whom to whom?.....................   A reduction in employment taxes from companies and employees
                                              to the Federal Government. There could also be a transfer of
                                             Federal, state, and local income tax revenue (provisions: 365-
                                                 day wait + end EADs early + end recommended approvals)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                  Category                                               Effects                                           Source citation
                                                                                                             (RIA, preamble, etc.)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Effects on state, local, and/or tribal        DHS does not know precisely how many low age workers could be  RIA.
 governments.                                 removed from the labor force due to the proposed rule. There
                                                 may also be a reduction in state and local tax revenue.
                                                Budgets and assistance networks that provide benefits to
                                                  asylum seekers could be impacted negatively if asylum
                                                         applicants request additional support.
Effects on small businesses................   This proposed rule does not directly regulate small entities,  RFA.
                                               but has indirect costs on small entities. DHS acknowledges
                                                that ending EADs linked to denied DHS-affirmative asylum
                                              claims and EADs linked to asylum cases under DOJ-EOIR purview
                                                 would result in businesses that have hired such workers
                                             incurring labor turnover costs earlier than without this rule.
                                                 Such small businesses may also incur costs related to a
                                                difficulty in finding workers that may not have occurred
                                                                   without this rule.
Effects on wages...........................                               None.                              RIA.
Effects on growth..........................                               None.                              RIA.
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 62401]]

    As will be explained in greater detail later, the benefits 
potentially realized by the proposed rule are qualitative. This rule 
would reduce the incentives for aliens to file frivolous, fraudulent, 
or otherwise non-meritorious asylum applications intended primarily to 
obtain employment authorization or other, non-asylum-based forms of 
relief from removal, thereby allowing aliens with bona fide asylum 
claims to be prioritized. A streamlined system for employment 
authorizations for asylum seekers would reduce fraud and improve 
overall integrity and operational efficiency. DHS also believes these 
administrative reforms will encourage aliens to follow the lawful 
process to immigrate to the United States. These effects stand to 
provide qualitative benefits to asylum seekers, communities where they 
live and work, the U.S. government, and society at large.
    The proposed rule also aligns with the Administration's goals of 
strengthening protections for U.S. workers in the labor market. Several 
employment-based visa programs require U.S. employers to test the labor 
market, comply with recruiting standards, agree to pay a certain wage 
level, and agree to comply with standards for working conditions before 
they can hire an alien to fill the position. These protections do not 
exist in the (c)(8) EAD program. While this rule would not implement 
labor market tests for the (c)(8) program, it would put in place 
mechanisms to reduce fraud and deter those without bona fide claims for 
asylum from filing applications for asylum primarily to obtain 
employment authorization or other, non-asylum-based forms of relief 
from removal. DHS believes these mechanisms will protect U.S. workers.
    The proposed biometrics requirement would provide a benefit to the 
U.S. government by enabling DHS to know with greater certainty the 
identity of aliens requesting EADs in connection with an asylum 
application. The biometrics will allow DHS to conduct criminal history 
background checks to confirm the absence of a disqualifying criminal 
offense, to vet the applicant's biometrics against government databases 
(e.g., FBI databases) to determine if he or she matched any criminal 
activity on file, to verify the applicant's identity, and to facilitate 
card production. Along with the proposals summarized above and 
discussed in detail in the preamble and regulatory impact sections of 
this proposed rule, DHS plans to modify and clarify existing 
regulations dealing with technical and procedural aspects of the asylum 
interview process, USCIS authority regarding asylum, applicant-caused 
delays in the process, and the validity period for EADs. These 
provisions are not expected to generate costs. If adopted in a final 
rule, the rules and criteria proposed herein relating to certain 
criminal offenses and the one-year-filing bar would apply to pending 
EAD applications. In order to implement the criminal ineligibility 
provision, DHS will require applicants with a pending initial or 
renewal (c)(8) EAD on the effective date of this rule to appear at an 
ASC for biometrics collection but DHS will not collect the biometrics 
services fee from these aliens. DHS will provide notice of the place, 
date and time of the biometrics appointment to applicants with pending 
EAD applications. Some aliens could be impacted and some may not be 
granted an EAD as they would otherwise under current practice, but DHS 
does not know how many could be impacted and does not estimate costs 
for this provision.

2. Background and Purpose of Rule

    The purpose of this proposed rule is to reform, improve, and 
streamline the asylum process, so that those with bona fide asylum 
claims can be prioritized and extended protection, including immediate 
employment authorization based on an approved asylum application. The 
provisions seek to reduce incentives to file frivolous, fraudulent, or 
otherwise non-meritorious asylum applications and other forms of non-
asylum based relief primarily to obtain employment authorization. As is 
detailed in the preamble, it has been decades since significant reforms 
were made to the asylum process, and there have been no major statutory 
changes to the asylum provisions to address the current aspects of the 
immigration laws that incentivize illegal immigration to the United 
States and frivolous asylum filings.
    DHS has seen a surge in illegal immigration into the United States, 
and USCIS currently faces a critical asylum backlog that has crippled 
the agency's ability to timely screen and vet applicants awaiting a 
decision.
    As a result of regulatory review required by E.O. 13767, Border 
Security and Immigration Enforcement Improvements, DHS identified the 
regulations that were inconsistent with this order and is revising them 
in this proposed rule. While working with Congress on legal reforms to 
deter frivolous, fraudulent, and non-meritorious filings, DHS is also 
taking administrative steps to improve the asylum application process, 
pursuant to the Secretary's authorities over immigration policy and 
enforcement. The broad goal is to minimize abuse of the system by 
inadmissible or removable aliens who are not eligible for asylum, but 
who seek to prolong their stay in the United States. The proposed 
changes will remove incentives for illegal aliens to cross the border 
for economic reasons and better allow DHS to process bona fide asylum 
seekers in an expedited manner. As a result, bona fide asylum 
applications would be adjudicated timelier, and the significant 
benefits associated with grants of asylum would be realized sooner.\91\
---------------------------------------------------------------------------

    \91\ A grant of asylum allows an alien to remain in the United 
States, creates a path to lawful permanent residence and 
citizenship, and allows for certain family members to obtain lawful 
immigration status. See INA sec. 208(b)(3) (allowing derivative 
asylum for asylee's spouse and unmarried children); INA sec. 
208(c)(1) (prohibiting removal or return of an alien granted asylum 
to alien's country of nationality, or in the case of a person have 
no nationality, the country of last habitual residence); INA sec. 
209(b) (allowing adjustment of status of aliens granted asylum); INA 
sec. 316(a) (describing requirements for naturalization of lawful 
permanent residents). An asylee is authorized to work in the United 
States and may receive financial assistance from the Federal 
Government. See INA sec. 208(c)(1)(B) (authorizing aliens granted 
asylum to engage in employment in the United States); 8 U.S.C. 
1612(a)(2)(A), (b)(2)(A), 1613(b)(1) (describing eligibility for 
Federal Government assistance).
---------------------------------------------------------------------------

    Information and data pertinent to the ensuing analysis is provided. 
A thorough qualitative discussion of the asylum application and related 
employment authorization application process is available in the 
preamble. Table 8 provides data concerning DHS affirmative asylum 
filings via Form I-589 for the five-year span of fiscal years 2014-
2018.\92\
---------------------------------------------------------------------------

    \92\ The data are collected from monthly ``Affirmative Asylum 
Statistics'' reports, which are publicly available at the USCIS data 
reporting website under the ``Asylum'' search filter: https://www.uscis.gov/tools/reports-studies/immigration-forms-datareport. 
The data were applicable as of April 1, 2019.

[[Page 62402]]



                                               Table 8--USCIS Form I-589 Affirmative Asylum Petition Data
                                                                     [FY 2014-2018]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                         FY                             Receipts        Approvals        Denials      Admin. close   Referrals--DOJ-EOIR   Pending pool
--------------------------------------------------------------------------------------------------------------------------------------------------------
2014...............................................          56,912          11,841             707           1,849             15,969            46,928
2015...............................................          84,236          15,999             458           3,010             20,353            85,593
2016...............................................         115,888          10,762             138           3,785             16,564           152,516
2017...............................................         142,760          15,229             137           5,825             29,639           252,627
2018...............................................         108,031          19,978             927           9,436             52,221           314,453
                                                    ----------------------------------------------------------------------------------------------------
    5-year total...................................         507,827          73,809           2,367          23,905            134,746    ..............
                                                    ----------------------------------------------------------------------------------------------------
        Average....................................         101,565          14,762             473           4,781             26,949           170,423
--------------------------------------------------------------------------------------------------------------------------------------------------------

    As can be gathered from Table 8, denials for DHS affirmative asylum 
filings are low, and approvals are also low, relatively speaking. 
Foremost, DHS administratively closes 4.7 percent of receipts.\93\ More 
significantly, DHS refers a large share of cases to DOJ-EOIR. The 
average referral rate is 26.5 percent, which ranged from a low of 14.4 
percent to a high of 49.2 over the period. Measured against receipts, 
the average approval and denial rates are 14.5 percent and .5 percent, 
respectively. However, if the basis is recalibrated to ``adjudicated 
cases''--the sum of approvals, denials, referrals (interviewed), and 
filing bar referrals--more salient approval and denial rates of 38.2 
and 1.2 percent, respectively, are obtained. These rates are more 
tractable because they remove the impact of administrative closures, 
referrals that did not involve an USCIS interview, and most 
importantly, the effect embodied in the growth of the pending (hence 
not yet processed cases) pool. Against ``adjudicated cases,'' DHS 
referred more than three-fifths (60.6 percent) of asylum cases to DOJ-
EOIR, and this share does not include non-interview referrals. As it 
relates to the total of all referrals, on average the share attributed 
to interview, filing bar, non-interview cases is 56, 29, and 14 
percent, respectively.\94\
---------------------------------------------------------------------------

    \93\ USCIS administratively closes I-589s where no decision can 
be made on the application by USCIS for various reasons, including, 
but not limited to: (1) lack of jurisdiction over the I-589 where 
the applicant is already in removal proceedings before EOIR and not 
a UAC (in those cases, the case is administratively closed but no 
NTA is issued since the person is already in proceedings); (2) an 
application is abandoned, withdrawn, or the applicant fails to show 
up for the interview or biometric services appointment after 
rescheduling options are exhausted (in those cases, no decision is 
made on eligibility but an NTA would be issued if the person is out 
of status and is still in the U.S.); (3) the applicant has a final 
administrative removal or ICE has reinstated a prior removal order 
(in those cases, the I-589 would be administratively closed and the 
person would be referred for a reasonable fear screening).
    \94\ The adjudicated basis also excludes some other minor 
categories such as ``dismissals,'' which comprise a handful of cases 
each year. It is noted that the definitional basis for adjudicated 
cases is the same as (or similar to with minor adjustments) the 
basis that DHS uses in much of its public facing and official 
reporting on asylum. Relevant calculations: The FY 2014-2018 average 
of ``adjudicated'' cases, as defined in the text, is 193,301. 
Dividing the annual average approvals of 73,809 by 193,301 yields 
the approval rate of 38.2 percent. Dividing the annual average 
denials of 2,387 by 193,301 yields the denial rate of 1.2 percent. 
The non-interview referral rate is obtained by dividing the sum of 
annual average filing bar and interview referrals, of 117,125, by 
193,301 yields 60.6 percent. The annual average of total referrals 
is 134,746. The sum of interview, filing bar, and non-interview 
cases, in order of, 74,763, 42,362, and 17,621, is 134,746. Diving 
each of the former by the latter yield 56, 29, and 14 percent, 
respectively.
---------------------------------------------------------------------------

    In Table 8, the average across the five-year period is provided. It 
is noted that the pending pool of applications has surged, as is 
evidenced by the fact that the 2017 and 2018 figures for end-of-year 
pending pool far exceeded the overall five-year average. For receipts, 
there has also been substantial growth, though filings declined 
markedly in 2018 from 2017.
    Data pertaining to DOJ-EOIR defensively-filed asylum cases was 
obtained and relevant data are collated in Table 9.\95\
---------------------------------------------------------------------------

    \95\ The DOJ-EOIR data is publicly available under the 
``Statistics and Reports'' suite, ``Workload and Adjudication 
Statistics'' section at https://www.justice.gov/eoir/workload-and-adjudication-statistics. The data are found in the ``Asylum Decision 
Rates'' and ``Total Asylum Applications'' reports, at https://www.justice.gov/eoir/page/file/1104861/download, and https://www.justice.gov/eoir/page/file/1106366/download, in order. The data 
reflect the updated data as of January 30, 2019.
    \96\ DHS Asylum cases referred to DOJ-EOIR over the period 
(Table 888) on average are a higher by about 13 percent on average, 
than the DOJ-EOIR Affirmative asylum filings. The primary reason is 
UAC cases. DHS counts them as referrals, but, since they are already 
in EOIR's caseload as an NTA has been filed in these cases, USCIS 
does not enter them into CASE-ISS and transfer the application 
through the usual referral process. EOIR counts them as defensively-
filed asylum cases as opposed to affirmative asylum cases that have 
been referred.

                                                     Table 9--DOJ-EOIR Asylum Caseload and Decisions
                                                                     [FY 2014--2018]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                               USCIS
                   FY                      referrals to    Defense filed    Total filed    Cases granted   Cases denied    Other outcome   Admin. closed
                                             DOJ-EOIR
--------------------------------------------------------------------------------------------------------------------------------------------------------
2014....................................          16,258          31,196          47,454           8,562           9,292          10,418           9,540
2015....................................          17,289          46,203          63,492           8,113           8,847          11,018          15,420
2016....................................          12,718          69,349          82,067           8,684          11,737          12,883          21,623
2017....................................          22,143         121,418         143,561          10,539          17,632          14,745          10,889
2018....................................          49,118         111,887         161,005          13,161          26,594          22,328           2,098
                                         ---------------------------------------------------------------------------------------------------------------
    5-year total........................         117,526         380,053         497,579          49,059          74,102          71,392         117,526
                                         ---------------------------------------------------------------------------------------------------------------
        Average.........................          23,505          76,011          99,516           9,812          14,820          14,278          23,505
                                         ---------------------------------------------------------------------------------------------------------------

[[Page 62403]]


            Share of completions........  ..............  ..............  ..............           15.7%           23.7%           22.9%           37.7%
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The first data column in Table 9 captures DHS referrals to DOJ-
EOIR, and generally corresponds with data in the fifth data column of 
Table 8.\96\ As the data indicate, asylum filings at DOJ-EOIR have also 
increased sharply over the five-year period, noting that the increase 
in defensive filings over the last three years has been particularly 
strong. Defensive cases also comprise the bulk of filings, more than 
tripling affirmative filings on average. Over the entire five-year 
period there were 312,079 total completions, noting that this tally 
comprises grants, denials, cases that were administratively closured, 
and ``others.'' The latter comprises defensively-filed asylum 
applications that were abandoned, not adjudicated, or withdrawn.
    Table 10 provides data on (c)(8) I-765 filings, and DHS notes that 
these apply to both DHS affirmative filings (including referrals to 
DOJ-EOIR) and those filings connected to defensively-filed asylum 
cases.

                Table 10--DHS I-765(c)(8) Filing Data for DHS Affirmative filings (Including Referrals to DOJ-EOIR), and Defensive Cases
                                                                     [FY 2014--2018]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                             Initials                                        Renewals
                           FY                            -----------------------------------------------------------------------------------------------
                                                             Receipts         Approve          Deny          Receipts         Approve          Deny
--------------------------------------------------------------------------------------------------------------------------------------------------------
2014....................................................          62,169          48,596          10,547          45,103          42,940           2,517
2015....................................................         106,030          85,606          13,080          72,559          63,631           3,221
2016....................................................         169,970         152,283          14,330         128,610         115,555           4,156
2017....................................................         261,782         234,080          21,179         212,255         166,208           4,854
2018....................................................         262,991         246,725          29,091          62,289          91,010           4,685
                                                         -----------------------------------------------------------------------------------------------
    5-year total........................................         862,942         767,290          88,227         520,816         479,344          19,433
                                                         -----------------------------------------------------------------------------------------------
        Average.........................................         172,588         153,458          17,645         104,163          95,869           3,887
--------------------------------------------------------------------------------------------------------------------------------------------------------

    As Table 10 indicates, the number of employment authorization 
applications filed under the (c)(8) eligibility category has increased 
steadily since 2014, although the trend appears to have levelled off in 
2018 (it is too early to tell if this will continue) at a historically 
high level. Over the entire period, 89 percent of initial filings for 
work authorization were approved. There is also a relatively high rate 
of renewal filings, and 62.5 percent of initial approvals were followed 
by an approved renewal.\97\
---------------------------------------------------------------------------

    \97\ Relevant calculations: for approval rate, 153,458 average 
approvals/172,588 average receipts = .889, and for renewal rate, 
95,869 average renewals/153,458 initial approvals = .6247. Both 
decimals are rounded and multiplied by 100.
    \98\ The (c)(8) I-765 data was provided by the USCIS Office of 
Performance and Quality (OPQ) from file tracking data (data accessed 
on Jan. 19, 2019).
---------------------------------------------------------------------------

    DHS obtained and performed analysis on a data set capturing a 
portion of (c)(8) Form I-765 information that covers principal 
applicants and dependents who also filed an I-589 Form with DHS (i.e. 
DHS affirmative cases, including DOJ-EOIR referrals), from 2014 through 
2018.\98\ Details and caveats concerning this data set are dealt with 
in detail in ensuing discussion of the costs of the proposed 365 EAD 
filing time wait. Based on analysis of this data, several time-centered 
variables are developed that are relevant to the forthcoming analysis. 
These indicators are produced and displayed in Table 11.

[[Page 62404]]



         Table 11--Calculated Time Intervals for DHS Affirmative Filings [Including DOJ-EOIR Referrals)
                                     (Average calendar days, FY 2014--2018]
----------------------------------------------------------------------------------------------------------------
                                                                   I-589 process
                                       I-589        I-765(c)(8)    time for DHS   Time between I-      I-589
                                    affirmative    process time     affirmative     589 filing      affirmative
               FY                  filing to  I-        for        cases (excl.    with DHS and    filing  to I-
                                     765(c)(8)      affirmative      DOJ-EOIR       referral to      765(c)(8)
                                      filing           cases         referral        DOJ-EOIR        approval
                                     interval                         cases)                         interval
----------------------------------------------------------------------------------------------------------------
2014............................             223              83             820             590             307
2015............................             228              84             812             737             312
2016............................             231              68             537             476             298
2017............................             210              67             380             278             277
2018............................             181              43             190              84             223
                                 -------------------------------------------------------------------------------
5-Yr Average....................             215              69           * N/A           * N/A             283
----------------------------------------------------------------------------------------------------------------
* DHS does not show a 5-year average for these time intervals because they are directly affected by the change
  from FIFO to LIFO processing.

    The data presented in Table 11 capture average calendar days.\99\ 
The `I-589 process time' reflects the filing time to decision for DHS 
affirmative cases only, as DHS does not have data on I-589 process time 
for cases referred to DOJ-EOIR. The following column captures the 
average time interval between when an I-589 was filed with DHS and when 
it was referred to DOJ-EOIR. The final column captures the average time 
interval between when an I-589 was filed with DHS and a (c)(8) I-765 
was approved. As is readily seen, there have been substantial declines 
in all of the intervals.
---------------------------------------------------------------------------

    \99\ The final data column captures the important ``wait'' time, 
between the filing date of the I-589 asylum petition and the 
approval of a (c)(8) I-765. This interval captures the amount of 
time an individual has between filing for asylum and being able to 
work and earn labor income. This metric is not exact though, as once 
a favorable decision is made concerning the EAD application, it 
takes some time to finalize and send the approval notice.
---------------------------------------------------------------------------

    Before developing the general and provision-specific populations 
that the rule could impact, a final data element is provided. In 
January 2018, USCIS reinstituted its LIFO scheduling priority for 
asylum applications. DHS partitioned out LIFO cases starting after 
January 2018 until the end of January 2019 to capture a full calendar 
year of time. The mean processing time was 166 days, which is even 
lower than the 190-day average for DHS adjudicated cases displayed in 
Table 11 for the fiscal year 2018.
3. Population
    In this section, the baseline population estimates are conducted 
for the rule in general and each specific provision. The term 
``baseline'' applies to the maximum population that the rule could 
involve. However, an important consideration in this regard is that 
there could be feedback from one provision that affects the baseline 
population. In the ensuing section on costs, the baseline figures will 
be tuned and modified to reflect the specific populations that could be 
impacted by the proposed provisions. These adjusted populations will be 
the ones incurring specified cost impacts.
    The proposed rule would require aliens who file for an EAD under 
the (c)(8) asylum category to submit biometrics and pay the $85 
biometric services fee. This biometrics requirement is the encompassing 
provision that captures the largest population under the rule. There 
will also be a small burden increase associated with the Form I-765. 
Asylum applicants filing for employment authorization under (c)(8) will 
be required to attend a biometric services appointment and will also 
need to answer new, additional questions on the form relating to new 
eligibility requirements, and read the associated instructions. USCIS 
estimates that the biometric services appointment will add an 
additional 1 hour and 10 minutes, while reading the instructions and 
answering the questions will add an estimated 15 minutes to the overall 
Form I-765 time burden for this category of filers. The encompassing 
population is the average of 172,588 initial filers would incur the 
small time burden and biometrics requirement (Table 10). In addition, 
current EAD holders who file for renewals would also submit biometrics 
and pay the $85 biometric services fee. Currently, initial (c)(8) I-765 
filers do not pay the I-765 filing fee, but renewal filers do, and this 
proposed rule does not suggest a change to the protocol. The annual 
average renewal (c)(8) I-765 filing population is 104,163 (Table 10).
    The proposed rule would require all asylum applicants to wait 365 
calendar days before filing for an initial EAD. Currently, applicants 
have a 150-day waiting period before they can file for an initial 
(c)(8) EAD. However, applicants whose initial EAD applications are 
denied would not be affected, and renewal EADs would not be affected by 
the proposed 365-day waiting period. Hence, the baseline population for 
the 365-calendar-day waiting period provision is the average number of 
initial (c)(8) I-765 approvals from FY 2014-2018, which is 153,458 
(Table 10).
    DHS is proposing to eliminate the preferential category of 
recommended approvals for asylum, under which an asylum applicant can 
file an EAD request upon initial favorable review by an asylum officer, 
prior to completion of all background, security, and related checks. 
Currently, aliens who have received a notice of recommended approval 
are able to request employment authorization ahead of the waiting 
period for those with pending asylum applications. From FY 2014 to FY 
2018, DHS issued 15,359 recommended approvals, or 3,072 on average 
annually. This population would be subject to the proposed rule.
    The proposed rule would make any alien who entered or attempted to 
enter the United States illegally ineligible for a discretionary EAD, 
absent mitigating circumstances discussed in the preamble. DHS does not 
know how many persons would have been subject to this provision in the 
past, and cannot determine this population going forward. The proposed 
rule also would bar any alien who has been convicted of or charged with 
a serious crime from eligibility for a discretionary EAD, with some 
exceptions, as is discussed in

[[Page 62405]]

detail in the preamble. DHS does not know how many persons would have 
been subject to this provision in the past and cannot determine this 
sub-population going forward. While individual adjudicative and 
security-related records can capture evidence and factors related to 
criminal activity, such information is not available in a dataset that 
can be queried for the requisite type of analysis and estimation 
needed.
    DHS proposes to terminate an alien's employment authorization 
connected to affirmative asylum applications on the date the asylum 
application is denied or dismissed by USCIS. Currently, such EADs 
terminate within 60 days after a USCIS asylum officer denies the 
application or on the date of the expiration of the EAD, whichever is 
longer. DHS analysis reveals that about 215 EADs were approved annually 
on average concomitant to denied DHS affirmative asylum claims; as of 
the present write-up, 360 such EADs are valid. The proposal to 
eliminate EADs linked to DHS affirmative asylum denials would end the 
validity of those EADs earlier than they otherwise end.
    DHS is also proposing to revise its regulations prescribing when 
employment authorization terminates following the denial of an asylum 
application by an IJ or BIA. DHS cannot determine how many DOJ-EOIR 
cases (either via DHS referral or defensive) apply to either the annual 
or existing population because DHS does not have granular data on DOJ-
EOIR cases that would facilitate analysis of EADs. This rule proposes 
that employment authorization would continue for 30 days following the 
date that an IJ denies an asylum application to allow for a possible 
appeal of the denial to the BIA. Currently, such EADs are allowed to 
naturally expire according to the terms of their EAD, unless the 
applicant seeks administrative or judicial review.
    The rule is proposing that EAD applications under the (c)(8) asylum 
category that are pending adjudication when the rule takes effect would 
be subject to the criminal and one-year-bar provisions proposed in the 
rule. File tracking data reveals that as of April 1, 2019, 14,451 
pending EAD applications would be impacted, as they would be subject to 
some of the criteria in the proposed rule.\100\ Some of these pending 
cases that would be granted an EAD under the current process could be 
denied as a result of the rule, but DHS has no way of predicting how 
many would be affected as such. In order to implement the criminal 
ineligibility provision for the pending population, DHS would require 
applicants with a pending initial or renewal (c)(8) EAD on the 
effective date of this rule to appear at an ASC for biometrics 
collection, but would not collect the biometrics services fee from 
these aliens.
---------------------------------------------------------------------------

    \100\ This population estimate is based on current volumes and 
may vary depending on when this rule becomes final.
---------------------------------------------------------------------------

    DHS proposes to bar from eligibility for employment authorization 
aliens who failed to file for asylum within one year of their last 
arrival in the United States, as required by law, if an asylum officer 
or IJ determines that an exception to the one-year filing bar does not 
apply. This bar would not apply to unaccompanied alien children. From 
FY 2014 to FY 2018, DHS referred 42,362 cases to DOJ-EOIR based on the 
one-year filing bar, for an annual average of 8,472.
    The proposed rule seeks to clarify that aliens who are paroled from 
custody after receiving a positive credible fear or reasonable fear 
determination are not eligible to seek immediate work authorization 
under 8 CFR 274a.12(c)(11), although, historically, USCIS has granted 
many of these requests. Aliens could still file under the (c)(8) 
category, if eligible. However, they would be subject to the proposed 
365-day wait period. From FY 2014 to FY 2018, an average of 13,000 
applications sought employment authorization through the (c)(11) 
category.
    Table 12 presents a summary of the populations that could be 
affected by the proposed rule.

   Table 12--Summary of Asylum EAD Populations Under the Proposed Rule
                                [Annual]
------------------------------------------------------------------------
  Abbreviated provision  (description)         Population estimate
------------------------------------------------------------------------
A. I-765(c)(8) initial filers--          172,588.
 biometrics.
B. I-765(c)(8) renewal filers--          104,163.
 biometrics.
C. Enact 365-day EAD filing wait period  153,458.
D. Eliminate recommended approvals.....  3,072.
E. Bar criminals from obtaining EADs...  Unknown.
F. End EADs for denied/dismissed asylum   DHS affirmative = 215
 claims.                                  annually and 360 currently
                                          valid.
                                          Affirmative referrals
                                          to DOJ-EOIR = Unknown.
                                          DOJ-EOIR defensive =
                                          Unknown.
G. Bar for illegal entry into the U.S..  Unknown.
H. One-year asylum filing bar..........  8,472.
I. Pending (c)(8) I-765 under proposed   14,451.
 conditions.
J. Clarify(c)(11) I-765 eligibility....  13,000.
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
    Total Proposed Rule Population.....  304,562.
------------------------------------------------------------------------

    In order to derive the total population potentially impacted by the 
rule, we add the annual flow volumes of the encompassing current 
biometrics (and time burden) population of 172,588 and the renewal 
filing volume of 104,163, which total to 276,751. To this sub-total, 
adding the potential 13,000 (c)(11) filers yields 289,751, which is the 
encompassing biometrics population. Since the other sub-populations 
collated in Table 12 are, by definition, (c)(8) I-765 filers, we do not 
add them to the flow volume, to safeguard against double-counting. But 
for the first year, the expected annual population of 289,751 is 
annotated to include two pools that would be impacted by the proposed 
rule; (i) the population of pending (c)(8) I-765 applications (14,451); 
and, (ii) the 360 existing EADs

[[Page 62406]]

that are connected to denied affirmative asylum claims that could be 
ended early. These two pools total to 14,811 which, when added to the 
expected annual flow volume, yields a maximum population of 304,562, 
which could be expected in the first year the rule takes effect. 
Starting in year two, the population would expectedly revert to the 
annualized flow volume of 289,751, because the two added pools would 
not be a factor after the first year.
    Having estimated the general population subject to the rule and the 
sub-populations germane to the specific provisions, DHS next conducts 
the economic impact assessment, noting, as was done in the introduction 
to this section, that the populations reported above are adjusted for 
technical considerations regarding the effects.\101\
---------------------------------------------------------------------------

    \101\ Preliminary data revisions indicate that the (c)(8) I-765 
filings and approvals in 2018 and 2017 could be higher than reported 
herein (Table 10). Finalized adjustments to the populations based on 
revised and validated data will be made at the appropriate stage of 
final rule development.
---------------------------------------------------------------------------

4. Transfers, Costs and Benefits of This Proposed Rule
a. Costs
    This section will be parsed into three modules. In Module 1, some 
key assumptions that will apply to multiple provisions are established. 
Module 2 develops quantitative costs and transfers for relevant 
provisions, while Module 3 covers costs and transfers that are not 
amenable to quantification.
Module 1. Data and Assumptions
    As was mentioned in the ``Population'' section above, DHS obtained 
a data set capturing (c)(8) I-765 filing data for initial applicants. 
This data include a large number of variables. DHS also obtained 
information on affirmatively-filed asylum applications, and integrated 
elements of the two data sets to capture information on affirmative 
asylum applicants who also filed for an EAD. Our analysis is based on 
this large scale data set that captured numerous variables important to 
the analysis. Several key assumptions and foundations apply across 
multiple provisions, which, in favor of brevity and readability, are 
introduced up front and only discussed hereafter where necessary.
    For the proposed provisions that would delay or prohibit an asylum 
applicant from earning work authorization, the impacts of this rule 
would include both distributional effects (which are transfers) and 
costs. These distributional impacts would fall to the EAD holders in 
the form of lost or delayed compensation (wages and benefits). A 
portion of this lost compensation would be transferred from these 
aliens to others that are currently in the U.S. labor force, possibly 
in the form of additional work hours or overtime pay. A portion of the 
impacts of this rule would also be costs borne by companies that would 
have hired the asylum applicants had they been in the labor market 
earlier, but were unable to find available replacement workers. 
Companies may also incur opportunity costs by having to choose the next 
best alternative to immediately filling the job the asylum applicant 
would have filled. As a result, DHS does not know the portion of 
overall impacts of this rule that are transfers or costs. If companies 
can find replacement labor for the position the asylum applicant would 
have filled, this rule would have primarily distributional effects in 
the form of transfers from asylum applicants to others already in the 
labor market (or workers induced to return to the labor market). If 
companies cannot find reasonable substitutes for the labor the asylum 
applicants would have provided, this rule would primarily be a cost to 
these companies through lost productivity and profits. USCIS uses the 
lost compensation to asylum applicants as a measure of the overall 
impact of the provisions that would delay or prohibit an asylum 
applicant from obtaining work authorization--either as distributional 
impacts (transfers) or as a proxy for businesses' cost for lost 
productivity.
    Furthermore, in instances where a company cannot hire replacement 
labor for the position the asylum applicant would have filled, such 
delays may result in tax transfer considerations to the government. It 
is difficult to quantify income tax transfers because individual tax 
situations vary widely, but DHS estimates the potential reduction in 
transfer payments to employment tax programs, namely Medicare and 
Social Security, which have a combined tax rate of 7.65 percent (6.2 
percent and 1.45 percent, respectively).\102\ With both the employee 
and employer not paying their respective portion of Medicare and Social 
Security taxes, the total estimated reduction in tax transfer payments 
from employees and employers to Medicare and Social Security is 15.3 
percent.\103\ We will rely on this total tax rate where applicable.
---------------------------------------------------------------------------

    \102\ The various employment taxes are discussed in more detail 
at https://www.irs.gov/businesses/small-businesses-self-employed/understanding-employment-taxes. See IRS Publication 15, Circular E, 
Employer's Tax Guide for specific information on employment tax 
rates. https://www.irs.gov/pub/irs-pdf/p15_18.pdf. See More Than 44 
Percent of Americans Pay No Federal Income Tax (September 16, 2018), 
available at: https://www.marketwatch.com/story/81-million-americans-wont-pay-any-federal-income-taxes-this-year-heres-why-2018-04-16.
    \103\ Calculation: (6.2 percent Social Security + 1.45 percent 
Medicare) x 2 employee and employer losses = 15.3 percent total 
estimated tax loss to government.
---------------------------------------------------------------------------

    The assessments of possible distributional impacts rely on the 
implicit assumption that everyone who received an approved (c)(8) EAD 
entered the labor force and found work, and thus earned wages of labor. 
We believe this assumption is justifiable because applicants would 
generally not have expended the direct and opportunity costs of 
applying for an EAD if they did not expect to recoup an economic 
benefit. Furthermore, the unemployment rate is currently, and has been 
recently, low by historical standards, currently sitting at 3.6 
percent, making it likely that such labor force entrants have found 
work.\104\
---------------------------------------------------------------------------

    \104\ This unemployment rate reflects the Bureau of Labor 
Statistics (BLS) most recent data, for April 2019. It can be found 
in the ``Employment Situation Summary'' of the Economic News Release 
section: https://www.bls.gov/news.release/empsit.toc.htm.
---------------------------------------------------------------------------

    Because the (c)(8) EAD does not include or require, at the initial 
or renewal stage, any data on employment, and, since it does not 
involve an associated labor condition application (LCA), DHS has no 
information on wages, occupations, industries, or businesses that may 
employ such workers. In some DHS rulemakings, the estimates of 
distributional impacts and time-related opportunity costs were linked 
to the Federal minimum wage for new entrants to the labor force. The 
Federal minimum wage is $7.25, which, when adjusted for benefits by a 
multiple of 1.46, is $10.59 per hour, with an annual salary of 
$15,080.\105\ This reliance is grounded in the notion that most of the 
relevant EAD holders would not have been in the labor force long, and 
would thus not be expected to earn relatively high wages. In this 
proposed rulemaking, we rely on a slightly more robust ``prevailing'' 
minimum wage of $8.25. As is reported by the Economic Policy Institute 
(EPI, 2016), many states have their own minimum wage, and,

[[Page 62407]]

even within states, there are multiple tiers.\106\ Although the minimum 
wage could be considered a lower-end bound on true earnings, the 
prevailing minimum wage is fully loaded, at $12.05, which is 13.8 
percent higher than the Federal minimum wage.\107\ While DHS does not 
rule out the possibility that some portion of the population might earn 
wages at the average level for all occupations, without solid a priori 
or empirical information we believe that providing a range with the 
lower bound relying on the prevailing minimum wage is justifiable. 
Therefore, for the purpose of this analysis, USCIS uses both the 
prevailing minimum hourly wage rate of $8.25 to estimate a lower bound 
and a national average wage rate of $24.98 to take into consideration 
the variance in average wages across states as an upper bound. The 
fully-loaded average hourly wage is $36.47. All of the quantified 
estimates of costs and transfer payments in this analysis incorporate 
lower and upper bounds based on these wages.\108\
---------------------------------------------------------------------------

    \105\ The benefits-to-wage multiplier is calculated by the BLS 
as (Total Employee Compensation per hour)/(Wages and Salaries per 
hour) = $36.32/$24.91 = 1.458 (1.46 rounded). See Economic News 
Release, Employer Cost for Employee Compensation (March 2019), U.S. 
Dept. of Labor, BLS, Table 1. Employer costs per hour worked for 
employee compensation and costs as a percent of total compensation: 
Civilian workers, by major occupational and industry group (March 
19, 2019), available at https://www.bls.gov/news.release/archives/ecec_03192019.pdf. Calculation for annual Federal minimum salary: 
Hourly wage of $10.59 x 2,080 annual work hours = $15,080.
    \106\ The EPI report is available at: https://www.epi.org/publication/when-it-comes-to-the-minimum-wage-we-cannot-just-leave-it-to-the-states-effective-state-minimum-wages-today-and-projected-for-2020//. There are multiple tiers of minimum wages across many 
states that apply to size of business (revenue and employment), 
occupations, working hours, and other criteria. Some of these 
variations per state are described at: https://www.minimum-wage.org.
    \107\ Calculations (1) for prevailing minimum wage: $8.25 hourly 
wage x benefits burden of 1.46 = $12.05; (2) (($12.05 wage-$10.59 
wage)/$10.59)) wage = .1378, which rounded and multiplied by 100 = 
13.8 percent.
    \108\ The average wage for all occupations is found BLS 
Occupational Employment Statistics, May 2018 National Occupational 
Employment and Wage Estimates, and reflects the 2017 average for all 
occupations nationally. The data is found at: https://www.bls.gov/oes/2018/may/oes_nat.htm#00-0000. Calculation: hourly wage of $24.98 
x benefits burden (1.46) = $36.47.
---------------------------------------------------------------------------

    Most of the cost impacts will result from delayed or forgone 
earnings to asylum applicants. Since the data analysis centers on 
calendar days, and costs are specifically linked to hours, we apply a 
scalar developed as follows. Calendar days are transformed into work 
days to account for the actuality that typically, 5 out of 7, or 71.4 
percent, of the calendar week is allotted to work-time, and that a 
workday is typically 8 hours. Based on the prevailing minimum wage of 
$12.05, the combined scalar is $68.83, and, based on the average wage 
it is $208.32.\109\ In summary, based on the prevailing minimum wage 
relied upon, each calendar day generates $68.83 dollars in relevant 
delayed or forgone earnings. It follows that for the upper wage bound 
that each calendar day generates $208.32 dollars in relevant delayed or 
forgone earnings/delayed earnings.
---------------------------------------------------------------------------

    \109\ Calculations: .714 x 8 hours per day x $12.05 wage = 
$68.83, and .714 x 8 hours per day x $36.47 wage = $208.32 
(rounded).
---------------------------------------------------------------------------

Module 2. Quantified Cost Impacts and Transfers
    As was mentioned above, DHS proposes to require all asylum 
applicants to wait 365 calendar days before filing for an initial EAD. 
Currently, applicants have a 150-day waiting period before they can 
file for an initial (c)(8) EAD. The baseline population specific to the 
365-day wait period is the average annual flow of initial (c)(8) EAD 
approvals (153,458, Table 10), as there would not be a cost for denied 
applicants. However, the DHS data set alluded to above captures about 
39,000 annual affirmatively filed cases, including cases later referred 
to DOJ-EOIR, for which DHS could conduct analysis on, which represents 
about a quarter of the approval population. Of the 153,458 average 
annual EAD approvals, DHS is able to conduct a quantified analysis of 
the impacts of the proposed 365-day wait on only these 39,000 
affirmative asylum applicants it has in this dataset, below. The 
analysis of the 365-day proposed EAD filing wait involves the 
interaction between data germane to the asylum cases and the EAD 
simultaneously. In this context, we discuss several reasons why the 
analyzable set share is relatively low. Foremost, it captures no 
defensively-filed asylum cases. Second, it does not capture cases 
germane to pending asylum cases--it captures cases in which a DHS 
decision or referral to DOJ-EOIR was made. Third, the data had to be 
obtained by developing a program to query several disparate data sets 
at once and match data between them in a structured format, with dozens 
of data points and indicators for each case. For cases in which one or 
more of the key data points was missing or not viable, the analysis as 
required was not possible. DHS parsed and filtered the data to exclude 
extreme outliers and erroneous data to obtain the most viable and 
tractable data amenable for the analysis. For the EADs associated with 
affirmative asylum filings adjudicated by DHS for which data are 
available, a reasonably detailed estimation of the impacts from 
changing the wait period to file for employment authorization from the 
150-day EAD clock to 365 days can be conducted. For affirmative cases 
referred to DOJ-EOIR by DHS for which data are available some 
estimation can be performed, but not with the same extent of precision 
and completeness, due to data constraints. This part of the analysis 
focuses on the DHS affirmative asylum cases for which complete data is 
available, and for DHS affirmative cases referred to DOJ-EOIR, for 
which some data is available. DHS does not have complete data for the 
``residual'' population, and estimates a maximum potential impact for 
this population separately.
    The analysis of the 365-day wait begins with consideration that 
some aliens, for whatever reason, did not file for an EAD until after 
365 days. Our analysis of the approximately 39,000 I-765 (c)(8) initial 
EAD approvals for affirmative asylum indicate that this group comprises 
10.2 percent of the 39,000 approved EADs with available data. 
Technically, this group, comprising 3,978 EADs, would not be impacted 
by the proposed 365-day wait, and, adjusting for them yields a 
``narrowed'' baseline of 35,022. While the percentage filing for an EAD 
after 365 days could vary in the future, it is integrated herein for 
the cost estimates.
    As noted above, the impact of the proposed provision depends on the 
interaction between the asylum decision and the EAD approval, since a 
granted asylum application provides de facto work authorization. 
Therefore, the narrowed baseline can be decomposed into specific cost-
segments to more appropriately hone the potential impacts. There has 
been a substantial reduction in DHS affirmative asylum processing time 
over the five-year span 2014-2018, and the adoption of LIFO processing 
has further contributed to the reduction. As noted above, in January 
2018, USCIS reinstituted LIFO processing. Although DHS typically relies 
on 3- or 5-year averages in most cost benchmarks, in this specific 
case, since LIFO is more likely to be representative of the future than 
an average of four years of FIFO and one year of LIFO, and, since it 
appears to have had a significant impact on asylum processing times, 
the costs are benchmarked to the calendar year of time covering the end 
of January 2018 to the end of January 2019 for DHS affirmative asylum 
decisions.
    Of the narrowed baseline, DHS referrals to DOJ-EOIR comprise 74.4 
percent (26,056 cases) and DHS affirmative adjudication comprises 25.6 
percent (8,966 cases) annually. The narrowed baseline for DHS 
affirmative asylum is parsed into four groups, A-D, that capture 
different cost segments germane to the potential interaction between 
approved asylum and the EAD and expected future conditions. Group A 
comprises DHS affirmative asylum adjudicated prior to 365 days, in 
which the EAD was ``binding''. The latter

[[Page 62408]]

impart that the EAD was approved prior to the asylum decision. For 
Group A, because the asylum application for these applicants would be 
adjudicated prior to the proposed 365-day wait period, the cost in 
terms of the proposed rule is the time interval between the current 
wait time and asylum approval. To explain this via an example, consider 
an individual that currently files for an EAD at the 150-day mark and 
has it approved 40 days later, at 190 days. If the concomitant asylum 
adjudication is at the 200-day mark, the true benefit the EAD could 
provide is 10 days (assuming the asylum claim is approved). Table 13 is 
introduced, which shows that Group A represented 11 percent of the 
narrowed baseline, or 3,852 aliens annually, and the average impact in 
terms of the EAD benefit is 53 days (in Table 13 all the shares are 
provided on the basis of the narrow baseline).
    Group B similarly consists of DHS affirmative asylum adjudicated 
prior to 365 days, but in contradistinction to Group A, under Group B 
the EAD was ``non-binding''--which means the grant of asylum could 
provide de facto work authorization, as it was adjudicated before the 
EAD. Because of this, Group B would not incur a cost impact in terms of 
delayed earnings from the proposed provision. For this 9.5 percent of 
the narrowed baseline, or 3,327 aliens, the EAD benefit was zero (as it 
was non-binding). Essentially, the EAD approval was inconsequential, 
and invoked a net cost because the filing costs were sunk. Hence, the 
cost in terms of the proposed rule is nil, but the forgone filing 
(sunk) costs can appropriately be credited as cost-savings.
    A key takeaway is that Groups A and B would potentially not file 
for an EAD in the future, since the asylum application was adjudicated 
in less than the proposed 365-day wait period to apply for employment 
authorization. Moreover, a key inference is that under LIFO, the 
majority of DHS affirmative asylum cases were adjudicated in less than 
one year. Accordingly, forgone filing costs for the 7,180 aliens are 
accredited a cost-savings. There is no filing fee for the initial 
(c)(8) EAD, and the time burden is currently 4.5 hours, which includes 
the time associated with submitting two passport-style photos along 
with the application. The Department of State (DOS) estimates that 
passport photos cost about $20 per application.\110\ At the lower wage 
bound of $12.05, the time related cost is $54.23, which, when added to 
the photo cost of $20, yields a per person cost of $74.25 (rounded to 
$74.3). The cost savings accruing to this group (A and B) would be 
$533,438 annually. At the high wage bound, cost-savings per person 
would be $184.10 and cost-savings to the group would be $1,321,748 
annually. DHS notes that this cost-savings estimate assumes the full 
sub-population would not file under the circumstances. However, as was 
mentioned in the preamble, some aliens might file for an EAD after 
being granted asylum if they want to have documentation that reflects 
that they are employment authorized.
---------------------------------------------------------------------------

    \110\ DOS estimates an average cost of $10 per passport photo in 
the Paperwork Reduction Act (PRA). Supporting Statement found under 
OMB control number 1450-0004. A copy of the Supporting Statement is 
found on Reginfo.gov at: http://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201102-1405-001 (see question #13 of the 
Supporting Statement).
---------------------------------------------------------------------------

    Group C involves DHS affirmative asylum adjudicated after 365 days. 
It is within this context that some assumptions need to be established. 
We assume that in the future, all EAD filers would file at exactly 365 
days and the processing time would be the global average of 69 days 
(Table 11), noting that the processing time relies on the five-year 
average as it is not directly impacted by the change to LIFO asylum 
processing). These assumptions make the analysis tractable and do not 
impose a loss of generality. For Group C, the asylum claim is decided 
after 434 days, which is the sum of the proposed 365 day wait and the 
average 69 EAD processing days. This group of 981 cases comprises 2.8 
percent of the narrowed baseline. For this group, the EAD is binding 
(universally) and the impact accrues to the difference between the 
global average current EAD-wait time of 283 days (Table 11) and 434 
days, which is 151 days.
    For Group D, affirmative asylum is currently adjudicated between 
365 and 434 days. For Group D, the EAD was approved before the asylum 
decision, and was therefore binding. But under the proposed rule, 
retaining the assumptions from above concerning average EAD processing 
time of 69 days, the EAD would ``switch'' to a non-binding state 
because it would be granted after the asylum application was 
adjudicated. As a result, there would be two impacts. The 
distributional effect to Group D is equal to the current EAD benefit 
(the current EAD benefit would, by definition, be strictly greater than 
zero). The average calendar-day impact to this 2.3 percent of the 
narrowed baseline, or 806 aliens, is calculated to be 130 days. 
Secondly, because under the proposed rule the asylum application would 
be adjudicated after 365 days but before the EAD approval, the EAD 
filing costs would become sunk (i.e. while the applicant would apply 
for an EAD, it would not result in any benefit). Based on the 
population of 806 and the per-person filing cost of $74.30 and $184.10, 
reflecting the wage bounds, sunk filing costs would be $59,849 and 
$148,294, respectively. Subtracting this amount from the filing cost 
savings (Groups A and B) generates ``net cost-savings'' that would 
range from $473,588 to $1,321,748.\111\
---------------------------------------------------------------------------

    \111\ Conceptually, a fifth group, could be added, under for 
which asylum was adjudicated after 365 days but before the EAD 
approval. There would be no earnings impact as a result of this 
provision, but analysis reveals that no cases would fit this 
conceptual category.
---------------------------------------------------------------------------

    The remainder of the narrowed EAD approval baseline applies to DHS 
referrals to DOJ-EOIR, which comprise 26,056 cases (Group E). DHS 
cannot partition these cases into cost segments akin to Groups A-D for 
DHS referrals to DOJ-EOIR. While the data does allow DHS to calculate 
the average wait time in terms of when asylum was filed and when the 
EAD was approved, because we do not have data concerning the decision 
on the asylum application, the interaction between the EAD and Asylum 
decision cannot be calculated. DHS analysis indicates that the impact 
is 133 days, and it is requisite to justify why this figure is reported 
as opposed to the 151-day impact for Group C. In practice, the average 
wait time and EAD processing times for Group C differ very slightly 
from the global averages reported in Table 11, but the difference is 
not statistically significant. However, the current wait for DHS 
referrals--measured strictly as the time interval between the filing 
for affirmative asylum and the EAD approval--is larger, at 301 days, 
and the difference is statistically significant.\112\ As a result the 
difference in day-impact between Group C (151 days) and Group E (133 
days) is 18 days, which is exactly the difference in current wait times 
between the two, at 283 and 301, in order.
---------------------------------------------------------------------------

    \112\ The tests of significance for differences in the means for 
the global population and Group C population report exact 
probability values (p-values) of .124 and .179, allowing 
determination that the minute differences are not significant at the 
95 percent level of confidence. The p-value for the difference in 
the mean of 301 for DHS referrals is .042, allowing determination 
that it is significantly different than the global of 283.

[[Page 62409]]



                       Table 13--Narrowed Baseline of EAD Approvals That Could Be Analyzed
----------------------------------------------------------------------------------------------------------------
                 Group                    Population       Share (%)        Group description      Average days
----------------------------------------------------------------------------------------------------------------
Group A...............................           3,852            11.0  DHS asylum adjudicated                53
                                                                         <365 days; EAD binding.
Group B...............................           3,327             9.5  DHS asylum adjudicated                 0
                                                                         <365 days; EAD non-
                                                                         binding.
Group C...............................             981             2.8  DHS asylum adjudicated               151
                                                                         >434 days; EAD binding
                                                                         by definition.
Group D...............................             806             2.3  DHS asylum adjudicated               130
                                                                         between 365-434 days;
                                                                         EAD currently binding.
Group E...............................          26,056            74.4  DHS referrals to DOJ-                133
                                                                         EOIR.
----------------------------------------------------------------------------------------------------------------

    DHS notes that while working with averages makes the analysis 
tractable and clearer, a caveat is that we rely on the assumption that 
the (c)(8) I-765 processing time is the same before and after the 
rule.\113\ In a sense too, we assume that the I-589 processing times, 
when we benchmark to the LIFO protocol, will be the same as well. If 
either change, the costs developed in Table 14 could vary. There could 
be two sources of such variation in the monetized costs. First, the 
populations of the subgroups would change, and, second, the day impacts 
could also change.
---------------------------------------------------------------------------

    \113\ DHS is also separately publishing an NPRM entitled 
``Removal of 30-Day Processing Provision for Asylum Applicant-
Related Form I-765 Employment Authorization Applications,'' DHS 
Docket No. USCIS-2018-0001, separate from this NPRM. If adopted as a 
Final Rule, that NPRM would affect current EAD processing times.
---------------------------------------------------------------------------

    Table 14 (A and B) breaks out the cost for each group presented in 
Table 13. The population germane to each group is repeated, as is the 
day impact. The following three columns translate the information into 
quantified costs. The data presented are undiscounted, with the low 
wage estimates provided in Table 14(A) and the upper bound wage 
estimates provided in Table 14(B).

          Table 14(A)--Proposed 365-Day EAD Filing Wait Cost Projections Based on the Lower Wage Bound
                                             [Undiscounted, annual]
----------------------------------------------------------------------------------------------------------------
                                                                     Costs per         Costs
                                                                    person (day    (population x    Tax impacts
              Group                 Population      Day impact       impact x        costs per       (costs x
                                                                      $68.83)         person)         15.3%)
----------------------------------------------------------------------------------------------------------------
A...............................           3,852              53          $3,648     $14,053,590      $2,150,199
B...............................           3,327               0               0               0               0
C...............................             981             151          10,393      10,191,866       1,559,355
D...............................             806             130           8,948       7,207,587       1,102,761
E...............................          26,056             133           9,154     238,530,155      36,495,114
                                 -------------------------------------------------------------------------------
    Subtotals...................  ..............  ..............  ..............     269,983,197      41,307,429
----------------------------------------------------------------------------------------------------------------
Minus: net costs-savings =......................................................         473,588  ..............
Equals: grand total =...........................................................     269,509,609      41,307,429
----------------------------------------------------------------------------------------------------------------


       Table 14(B)--Proposed 365-Day EAD Filing Wait Cost Projections Based on the Upper Bound Wage Bound
                                             (Undiscounted, Annual)
                                             [Undiscounted, annual]
----------------------------------------------------------------------------------------------------------------
                                                                     Costs per         Costs
                                                                    person (day    (population x    Tax impacts
              Group                 Population      Day impact       impact x        costs per       (costs x
                                                                     $208.32)         person)         15.3%)
----------------------------------------------------------------------------------------------------------------
A...............................           3,852              53         $11,041     $42,534,415      $6,507,766
B...............................           3,327               0               0               0               0
C...............................             981             151          31,456      30,846,571       4,719,525
D...............................             806             130          27,082      21,814,391       3,337,602
E...............................          26,056             133          27,707     721,932,323     110,455,645
                                 -------------------------------------------------------------------------------
    Subtotals...................  ..............  ..............  ..............     817,127,700     125,020,538
----------------------------------------------------------------------------------------------------------------
Minus: net costs-savings =......................................................       1,173,454
Equals: grand total =...........................................................     815,954,246     125,020,538
----------------------------------------------------------------------------------------------------------------

    Subtracting the net cost-savings from the subtotals yields the 
total costs of the rule in terms of lost or delayed earnings from the 
proposed 365-day wait for 39,000 of the 153,458 EADs affected annually, 
which could range from

[[Page 62410]]

$269.5 million to $815.9 million annually, depending on the wage of the 
asylum worker. Similarly, the reduction in tax transfer payments from 
employers and employees could range from $41.3 million to $125 million 
annually, depending on the wage and if companies cannot find reasonable 
substitutes for the labor the asylum applicant would have provided. The 
annual midrange for costs and taxes are $542.7 million and $83.2 
million annually, in order. However, DHS notes that the lack of data 
about DHS referrals precluded our ability to parse out potentially 
lower cost segments of the 26,056 annual affirmative cases referred to 
DOJ-EOIR, as we were able to do with DHS-adjudicated asylum 
applications. This inability likely results in a dual effect. First, 
for some segments, the day gap would be lower than the average 133 
days, thus reducing deferred or lost wages and tax transfers. In 
addition, there would be cost savings that would accrue to forgone 
filings as some might not need to file a (c)(8) I-765. As it relates to 
defensively-filed asylum cases, as was seen in groups A-D of 
affirmative cases, there could be cost-savings from no longer filing an 
I-765, and for cases in which the EAD was filed after 365 days, the 
proposed rule would not have an impact.
    In the above section, DHS analyzes 39,000 of the 153,458 affected 
EAD approvals for which DHS could obtain specific data to assess the 
impacts of the proposed 365-day EAD filing wait time. In this section, 
DHS analyzes the remaining 114,458, the ``residual'' population, which 
contains three groups of EAD cases linked to asylum: (i) What is likely 
a small number of DHS affirmative cases for which viable data could not 
be ascertained; (ii) DHS affirmative asylum cases in which the asylum 
claim was pending; and (iii) defensive cases. Since we have incomplete 
data on this population, USCIS estimates the day-impact as the 
difference between the future projected 434 days and the global current 
average of 283 days (EAD wait time), or 151 days.
    For the residual population, the cost impact at the low wage bound 
is $10,393 each (151 days multiplied by $68.83), which, at a population 
of 114,458, generates $1,189.6 million in lost earnings and generates 
$182.0 million in tax transfers annually. The cost impact at the upper 
wage bound is $31,456 each (151 days multiplied by $208.32), which, at 
a population of 114,458, generates $3,600.4 million in lost earnings 
and generates $550.9 million in tax transfers annually.
    The costs reported above represent a maximum estimate of the 
potential impact for this residual population. This is because DHS 
lacks data on the how many days after filing for asylum these 
applicants apply for an EAD and how many days after filing for an EAD 
these applicants receive an asylum decision, which would allow DHS to 
parse the lower cost segments. Specifically, there may be a portion of 
the residual population that currently waits more than 365-days to 
apply for an EAD. The estimated 151-day delay would be overstated for 
this group and would decrease the above estimated impact. Additionally, 
there may be a portion of the residual population that would receive an 
asylum decision in less than 434 days. The estimated 151-day impact 
would also be overstated for this group. Furthermore, aliens who 
receive an asylum decision in less than 434 days would not have to file 
for an EAD under the proposed rule, resulting in cost savings for 
forgone future filings. However, DHS notes that a large number of 
defensive cases are unlikely to be adjudicated before 434 days. 
Although DHS does not have the information to map defensive asylum 
cases to the associated EADs, DHS was able to obtain data on defensive 
asylum claims that captured the date the asylum case was received, and 
the completion date. Our analysis reveals that for FY 2014-2018 the 
average time interval between the two days was 624 days. Since 
defensive asylum processing times have been on average (over the 
studied period) greater than 434 days, relying on the 151-day impact 
period is a reasonable estimate. Nevertheless, because 151 days is by 
definition the maximum impact allowable in our impact setup, the 
estimates are still overstated because at least some of the defensive 
cases (and the DHS affirmative cases not included in the 39,000 batch 
with analyzable information) would invoke asylum decisions less than 
434 days. As a result, the true day-impact for some of the residual 
population would be strictly less than 151 days.
    This rule also proposes to incorporate a biometrics requirement 
into the employment authorization process for asylum seekers. 
Specifically, aliens will be required to appear at an ASC for 
biometrics collection and pay a biometrics services fee. The proposed 
biometrics requirement would apply to (c)(8) I-765 filers, for both 
initial and renewal EAD applications. Biometrics are currently 
collected for all (both affirmative and defensive) Form I-589 
applicants, and they are exempt from paying the $85 biometric services 
fee. However, biometrics are not currently collected when asylum 
applicants apply for employment authorization. The proposed rule would 
not impact the asylum filing biometrics protocol, but would require 
biometrics collection at the EAD filing stage for (c)(8) I-765 
applicants, as well as payment of the $85 biometric services fee.
    To estimate the cost of this biometrics requirement, we begin with 
the population of 289,751, which, tallied earlier, comprises the 
initial, renewal, and potential (c)(11) transfer populations. 
Biometrics are also not currently collected for (c)(11) I-765 filers 
and thus would also be a new requirements for these 13,000 annual 
filers. 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 the proposed rule (under 
the LIFO protocol). We scale the population by this percentage to yield 
an adjusted population of 230,352 (289,751 multiplied by (1 minus 
.205). Under the proposed collection requirement there will be 
exemptions and waivers that apply to both biometrics submission and the 
concomitant $85 biometric services fee (that are outside the purview of 
the rule). DHS cannot predict exactly how these waivers and exemptions 
will apply, but develops proxy metrics to allow for equitable 
estimations to populations not yet existent, in context. Therefore, the 
second stages of the population adjustment require a more detailed, 
technical approach. This approach is developed next.
    When an individual appears at a DHS-USCIS ASC for a biometric 
collection appointment, their biometrics are digitally collected and 
stored in the Customer Profile Management System (CPMS) database, which 
is the USCIS data repository for biometrics submissions. DHS obtained 
biometric submission data from CPMS for the five-year period 2013-2017. 
The five-year average across all USCIS immigration forms was 3,619,794. 
Detailed analysis of the biometrics submissions data reveals that a 
small group of nine forms accounted for the vast majority, 90.5 
percent, of the average biometrics submissions. These forms are: (1) 
Form N-400, Application for Naturalization; (2) Form I-90, Application 
to Replace Permanent Resident Card; (3) Form I-765, Application for 
Employment Authorization; (4) Form I-485, Application to Register 
Permanent Residence or Adjust Status; (5) Form I-

[[Page 62411]]

589, Application for Asylum and Withholding of Removal; (6) Form I-
821D, Consideration of Deferred Action for Childhood Arrivals; (7) Form 
I-131, Application for Travel Document; (8) Form I-751, Petition to 
Remove the Conditions on Residence; and (9) Form I-601A, Application 
for Provisional Unlawful Presence Waiver (noted here are that two of 
the forms, I-765 and I-589 are involved in the presently proposed 
rule). The remainder majority of forms are characterized by very small 
populations, very few biometrics submissions (for which many accounted 
for zero submissions in terms of percentage and number), and 
unspecified form types. The biometrics volumes for the prevalent group 
of nine forms (``PREV-9'') are presented in Table 15.

                                                    Table 15--Biometric Submissions by Form Grouping
                                                                    [FY 2013-FY 2017]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                  Form                        FY 2013         FY 2014         FY 2015         FY 2016         FY 2017       5-Year avg.        Share
--------------------------------------------------------------------------------------------------------------------------------------------------------
PREV-9:
    N-400...............................         778,172         779,221         772,648         961,092       1,013,252         860,877           23.78
    I-90................................         554,918         790,069         780,050         743,589         770,552         727,836           20.11
    I-765...............................         421,011         391,650         800,711         489,553         588,008         538,187           14.87
    I-485...............................         459,298         506,991         494,664         500,369         547,755         501,815           13.86
    I-589...............................          95,938         116,668         173,248         230,900         304,308         184,212            5.09
    I-821D..............................         350,339         102,192         242,101         125,489         224,899         209,004            5.77
    I-131...............................          89,146          87,012          87,755          88,977          86,299          87,838            2.43
    I-751...............................         185,587         172,478          93,359          71,823          83,417         121,333            3.35
    I-601A..............................          16,381          37,293          48,978          52,654          67,494          44,560            1.23
PREV-9 (all)............................       2,950,790       2,983,574       3,493,514       3,264,446       3,685,984       3,275,662           90.5%
Other Forms.............................         241,605         198,537         709,577         328,339         242,604         344,132            9.5%
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
    Total...............................       3,192,395       3,182,111       4,203,091       3,592,785       3,928,588       3,619,794            100%
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The remaining 88 percent of forms comprise less than 10 percent of 
average biometrics submissions. The future population for biometrics 
submission under the proposed rule does not yet exist, in context. To 
estimate the future population, a method needs to be developed to 
extrapolate functional conditions from the existing state of affairs. 
To accomplish this, a biometrics collection rate (BCR), a formula 
estimating the proportion of biometric submissions out of the total 
age-eligible population within a form type, is developed. The BCR 
formula is motivated below (Formula 1):
[GRAPHIC] [TIFF OMITTED] TP14NO19.000

    Where BCR represents the Biometrics Collection Rate for a specific 
form type, BI represents ``intensity,'' the average number of aliens 
who currently submit biometrics by that form type in a fiscal year, and 
P represents the volume of age-eligible benefit requests associated 
with a form type by fiscal year. The calculations for the BCR for PREV-
9 are shown in Table 16. The average biometrics submissions are 
repeated from Table 15 as the five-year average, and the average age 
eligible population is also the five-year average. The results in Table 
16 call for explanation.

                              Table 16--Biometrics Collection Rate by Form Grouping
                                                [FY 2013-FY 2017]
----------------------------------------------------------------------------------------------------------------
                                                                                    Average age
                                                                      Average        eligible
                                                                    biometrics        filing            BCR
                                                                    submissions     population
----------------------------------------------------------------------------------------------------------------
PREV-9 set:
    I-765.......................................................         538,187       1,892,366           0.284
    I-131.......................................................          87,838         409,699           0.214
    N-400.......................................................         860,877         839,601           1.025
    I-90........................................................         727,836         703,707           0.985
    I-485.......................................................         501,815         612,148           0.820
    I-821D......................................................         209,004         370,838           0.564
    I-589.......................................................         184,212         127,499           1.445
    I-751.......................................................         121,333         164,441           0.738
    I-601A......................................................          44,560          45,633           0.976
Two added forms:
    I-918.......................................................          43,235          52,805            .819
    I-914.......................................................           1,907            2004            .952
Raw BCR for regrouped set.......................................  ..............  ..............           .8363
----------------------------------------------------------------------------------------------------------------


[[Page 62412]]

    The BCR for different form types varies due to the eligibility 
categories and age characteristics of the filers and dependents. For 
the Forms N-400 and I-589, the BCR is higher than unity. The reason is 
that biometrics are currently routinely collected on all principal 
applicants for these forms as well as derivative family members who 
generally submit biometrics alongside the principal applicant. Two 
forms, the I-131 and I-765, have low BCRs, even though biometrics are 
routinely collected for these forms. But these BCRs are 
``artificially'' low because of concurrent filings; in many cases 
biometrics are submitted via a concurrent form. As has been stated 
earlier, the goal is to broadly collect biometrics from (c)(8) I-765 
filers, but there will be exemptions and waivers (that have nothing to 
do with the proposed rule).\114\ Hence, a proxy for BCR estimation 
should be less than unity, but be positive and relatively high, and 
while some analyst subjectivity is involved in our methodology, given 
the unknowns, it is a rational approach. The BCRs for the four forms in 
PREV-9 not discounted immediately above due to ``artificially'' high/
low BCRs are assessed to be reasonable and have a good deal of range, 
from .564 to .985. Since it is desirable to have as many relevant forms 
as possible in the proxy collection, we examined the BCRs for the 
remaining [specific] forms and proceeded to add two, which are the only 
forms external to PREV-9 that have high BCRs: Form I-914, Application 
for T Nonimmigrant Status, and Form I-918, Petition for U Nonimmigrant 
Status. The respective BCRs for these two additional forms, in order, 
are .952 and .819, as is shown in Table 15. Recalibrating, this 
rebranded group of 7 forms represent just 9 percent of the form 
captures under CPMS (including the non-specific types) but nearly half 
(46 percent) of average biometrics submissions.
---------------------------------------------------------------------------

    \114\ Waivers are limited and would apply when there the 
applicant is unable to provide fingerprints because of a medical 
condition.
---------------------------------------------------------------------------

    For the seven proper forms, we obtain the unweighted average BCR of 
83.63 percent. We do not have a priori information on which specific 
forms (or a subgroup of them) would have a BCR closest to the not yet 
existing, in context, rule population. Similarly, there is no 
``target'' or desired BCR that we seek to impugn to this population 
under the proposed rule. Hence, we use the raw average as opposed to a 
weighted one, because the former weights each BCR in the group equally. 
Scaling the adjusted population of 230,352 baseline biometrics by .8363 
yields a projected biometrics submitting population (BSP) of 192,643.
    Before estimating the costs of the biometrics requirement, another 
proxy metric is needed, and hence another formula is required. Not all 
of the biometrics submissions will involve the $85 biometric services 
fee, as there will be applicable exemptions and waivers (that have 
nothing to do with the proposed rule). To estimate the fee paying 
population, DHS uses the total volume of biometric services fee 
payments and the overall volume of biometric submissions to derive a 
biometrics fee ratio (BFR), a formula identifying the portion of aliens 
who pay the $85 biometric services fee out of the total population of 
those submitting biometrics who may be required to pay the fee (e.g. 
excluding I-589 applicants because they are not required to pay the 
corresponding biometrics fee).
    The formula for the BFR calculation is provided below (Formula 2):
    [GRAPHIC] [TIFF OMITTED] TP14NO19.001

    Where BFR represents the Biometrics Fee Ratio, F is the estimated 
number of aliens who pay the biometric services fee in a fiscal year 
and BI represents the number of biometrics submissions in a given 
fiscal year, which was initialized above in the BCR setup. The fee-
paying volume for biometrics services is available from FY 2015 to FY 
2017 only. The BFR is calculated by comparing the biometric fee paying 
volumes to total biometrics submissions. In FY 2017, for example, a BFR 
of 0.77 results by dividing a volume of 2.80 million biometric services 
fee payments by a total of 3.62 million biometrics submissions.\115\ 
Stated somewhat differently, for every known non-exempt benefit request 
with a biometrics submission, DHS estimates that about 77 percent of 
aliens pay the biometric services fee while the remaining 23 percent of 
aliens receive a fee exemption, a biometric services fee waiver, or 
fall outside of the current age restrictions for submitting the $85 
biometric services fee. Table 17 provides the BFR calculations for each 
fiscal year, including the total and three-year average. The 
generalized BFR that obtains is .755, which is weighted for the volume 
size each year, since it is derived from the total that will be used 
for subsequent calculations.\116\
---------------------------------------------------------------------------

    \115\ Calculation: 2,801,648 fee-paying volume for FY 2017/
(3,928,588 total biometrics collection volume for FY 2017--304,308 
Form I-589 biometrics collection volume for FY 2017) = 0.77. The 
Form I-589 is excluded in the BFR calculations because there is no 
fee associated with this form.
    \116\ Calculation: 2,771,279 average Fee-Paying Volume/3,672,003 
average biometric collection volume exclusive of Form I-589 
biometric submissions = 0.75 (rounded).

                                    Table 17--Biometric Fee Ratio, All Forms
                                                [FY 2015-FY 2017]
----------------------------------------------------------------------------------------------------------------
                                                                                     Biometric
                                                                    Fee-paying      submissions   Biometrics fee
                           Fiscal year                                volume      (excludes Form    rate (BFR)
                                                                                      I-589)
----------------------------------------------------------------------------------------------------------------
FY 2015.........................................................       2,765,927       4,029,843           0.686
FY 2016.........................................................       2,746,261       3,361,885           0.817
FY 2017.........................................................       2,801,648       3,624,280           0.773
                                                                 -----------------------------------------------

[[Page 62413]]


    Total.......................................................       8,313,836      11,016,008  ..............
Average.........................................................       2,771,279       3,672,003           0.755
----------------------------------------------------------------------------------------------------------------

    Applying the average BFR of .755 to the BSP biometrics population 
of 192,643 yields an estimated 145,446 biometric services fee payments 
(BFP) annually.
    Having undertaken several steps to develop the appropriate BSP and 
ensuing BFP, the costs germane to the biometrics requirement can be 
developed. The submission of biometrics would require that aliens 
travel to an ASC for the biometric services appointment.\117\ In past 
rulemakings, DHS estimated that the average round-trip distance to an 
ASC is 50 miles, and that the average travel time for the trip is 2.5 
hours.\118\ The cost of travel also includes a mileage charge based on 
the estimated 50 mile round trip at the 2019 General Services 
Administration (GSA) rate of $0.58 per mile.\119\ Because an individual 
would spend 1 hour and 10 minutes (1.17 hours) at an ASC to submit 
biometrics, summing the ASC time and travel time yields 3.67 hours. At 
this point we will also incorporate the added time burden of 15 minutes 
(.25 hours), for additional Form I-765 questions and instructions, in 
order to consolidate the costs. The total time is therefore 3.92 hours. 
At the low and high wage bounds, the opportunity costs of time are 
$47.24 and $142.96. The travel cost is $29, which is the per mileage 
reimbursement rate of .58 multiplied by 50 mile travel distance. 
Summing the time-related and travel costs generates a per person 
biometrics submission cost of $76.24, at the low wage bound and $171.96 
at the high wage bound.
---------------------------------------------------------------------------

    \117\ DHS expects the majority of biometrics appointments to 
occur in the United States at an ASC. However, in certain instances 
aliens may submit biometrics at an overseas USCIS office or DOS 
Embassy or consulate. However, because DHS does not currently have 
data tracking the specific number of biometric appointments that 
occur overseas, it uses the cost and travel time estimates for 
submitting biometrics at an ASC as an approximate estimate for all 
populations submitting biometrics in support of a benefit request.
    \118\ See DHS Final Rule, Provisional Unlawful Presence Waivers 
of Inadmissibility for Certain Immediate Relatives, 78 FR 535 (Jan. 
3, 2013).
    \119\ The General Services Administration mileage rate of $0.58, 
effective January 1, 2019, available at: https://www.gsa.gov/travel/plan-book/transportation-airfare-rates-pov-rates/privately-owned-vehicle-pov-mileage-reimbursement-rates.
---------------------------------------------------------------------------

    The total annual cost for the BSP would be $14,686,363 at the low 
end and $33,127,424 at the high end. Multiplying the estimated BFP by 
the $85 fee yields $12,362,891 annual biometric services fee costs. In 
addition, DHS is proposing to require applicants with a pending initial 
or renewal (c)(8) EAD application on the effective date of the final 
rule to appear at an ASC for biometrics collection; but, DHS would not 
collect the biometrics services fee from these aliens. Based on the 
file tracking data as of April 1, 2019, DHS estimates that 14,451 
pending EAD applications would be impacted. Multiplying the 14,451 by 
the BCR provides a pending population estimate of 12,085 (rounded). 
Since DHS would not collect the biometrics services fee from this 
population, costs to applicants would only include time-related and 
travel costs which would range from $921,389 to $2,078,200.\120\
---------------------------------------------------------------------------

    \120\ As previously estimated, time-related and travel costs per 
person result in $76.24 at a lower wage and $171.96 at a higher 
wage. Therefore, the costs to applicants with pending applications 
are estimated by multiplying $76.24 and $171.96 by the population 
estimate of 12,085. DHS also notes that this population estimate is 
based on current volumes and may vary depending on when this rule 
becomes final.
---------------------------------------------------------------------------

    Combining the costs to the BSP and fee payments for the BFP, and 
the costs to the pending population, the costs of the biometrics 
provision, at the low and high wage, in order, are estimated at 
$27,970,644 and $47,568,515 in the first year and $27,049,255 and 
$45,490,315, annually thereafter.
    DHS is also proposing to eliminate the recommended approvals for 
asylum, under which an asylum applicant can file an EAD request upon 
initial favorable review by an asylum officer, prior to completion of 
all background, security, and related checks. No individual having 
already benefitted from the preferential treatment would be adversely 
impacted. However, DHS must treat the earnings from recommended 
approvals that would have occurred in the future as costs because the 
proposed rule would eliminate these earnings. For the average 3,072 
annual recommended approvals, not all applied for EADs, and not all of 
those that applied were granted EADs. The data reveals that the share 
of recommended approvals that eventually were approved for EADs was 
62.8 percent, yielding 1,930 annual cases. The data was organized by 
fiscal year and the requisite time interval was calculated by 
subtracting the date of the associated asylum filing from the EAD 
approval date. The results are presented in Table 18:

                                    Table 18--Impact of Recommended Approvals
                    [Average calendar days from asylum filing to EAD approval, FY 2014-2018]
----------------------------------------------------------------------------------------------------------------
                                                                No recommended    Recommended
                         Fiscal year                               approval         approval      Day difference
----------------------------------------------------------------------------------------------------------------
2014.........................................................              330              246               83
2015.........................................................              317              262               56
2016.........................................................              305              264               41
2017.........................................................              310              268               42
2018.........................................................              234              193               40
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr

[[Page 62414]]


    2014-2018 average........................................  ...............  ...............               52
----------------------------------------------------------------------------------------------------------------

    As Table 18 reveals, recommended approvals have benefited by having 
EADs commence validity an average of 52 days sooner than others. This 
52-day raw average day tally translates into a scaled impact of $3,579 
per person at the low wage and (52-day impact x $68.83), and $10,833 at 
the high wage (52-day impact x $208.32). Multiplying these costs by 
1,930 annual cases yields a total labor income impact of $6,907,779 and 
$20,907,387, in order. Similarly, the reduction in tax transfer 
payments from employers and employees to the government could range 
from $1,056,890 to $3,198,770 annually, depending on the wage and if 
companies cannot find reasonable substitutes for the labor the asylum 
applicant would have provided. The midpoint of the range for costs and 
taxes are $13,907,387 and $2,127,830, in order.
    DHS is also proposing to revise its regulations prescribing when 
employment authorization terminates following the denial of an asylum 
application. Under the baseline, DHS affirmative-asylum denials have 
concomitant approved EADs terminated within 60 days after the adverse 
asylum decision or on the date of the expiration of the EAD, whichever 
is longer. This rule proposes that employment authorization would 
instead be terminated effective on the date the affirmative asylum 
application is denied. However, if DHS refers the case to DOJ-EOIR, 
employment authorization will be available to the alien while in 
removal proceedings. DHS analysis of the data reveals that 360 EADs 
associated with a denied DHS Affirmative asylum application are 
currently valid that could be terminated earlier than they otherwise 
would, when the rule goes into effect. In addition to the costs of 
potentially terminated EADs in the first year, the analysis reveals 
about 215 EADs have been issued to concomitant asylum denials annually.
    For the pool of 360 current EADs, the time remaining between the 
present date of analysis (a proxy for the rule becoming effective) and 
the time left on each EAD was calculated. As stated above, under the 
baseline, the EADs linked to these DHS affirmative-asylum would end 
within 60 days after the adverse asylum decision, or, on the date of 
the expiration of the EAD, whichever is longer. For the cases with less 
than 60 days left, calculating the precise cost of the rule to these 
cases would require a complex analysis of the interaction between two 
variables, the asylum decision date and the EAD validity period, as 
well as the rule proxy date. To make the analysis tractable, we assign 
these cases the 60-day period, noting that this assignment would likely 
somewhat overstate the costs to these cases. After the recalibration to 
60 days for the cases in with less than 60 days remaining, the average 
time left on the EADs is 356 days. For the annual flow of 290 EADs, the 
cost basis is the day-time difference between the adverse asylum 
decision and the end of the EAD validity. For these cases the average 
impact is 471 days.
    The costs of the provision to end some EADs early can now be 
tallied, since the appropriate impact metrics have been calculated. For 
the existing EADs, the cost impact at the low wage bound is $24,503 
each (356 days multiplied by 68.83), which is $8,821,253 in lost 
earnings and generates $1,349,652 in tax transfers. The cost impact at 
the upper wage bound is $74,162 each (356 days multiplied by $208.32), 
which is $26,698,291 in lost earnings and generates $4,084,839 in tax 
transfers. These specific costs and tax transfers would be incurred the 
first year the rule could take effect.
    For the annual flow of 215 annual EADs, the cost impact at the low 
wage bound is $32,149 each (471 days multiplied by 68.83), which is 
$6,970,070 in lost earnings and generates $1,066,421 in tax transfers. 
For the annual flow of 215 EADs, the cost impact at the upper wage 
bound is $98,119 each (471 days multiplied by 208.32), which is 
$21,095,525 in lost earnings and generates $3,227,616 in tax transfers. 
These costs and transfers would be incurred annually.
    Adding up the costs and transfers for both the existing and future 
EADs that could be impacted, for the first year the rule could take 
effect, the costs would be $15,791,323 at the lower wage bound and 
$47,793,816 at the upper wage bound. Similarly, taxes would range from 
$2,416,072 to $7,312,454. The midpoint estimate for total costs and 
taxes, in order, are $31,792,569, and $4,864,263.
    Having estimated the costs and tax transfers for the provisions in 
which costs and transfers could be quantified, we now tally them and 
present the total quantified costs and transfers of the proposed rule. 
There are essentially three quantified modules. First is the flow 
volume of costs that will be incurred in each of ten years. As was 
shown above, for the proposed biometrics requirement, costs were 
allotted to the time-related opportunity costs associated with 
submitting biometrics, the cost of travel, a form burden increase, and 
the biometrics service fee payments. For the proposal to eliminate 
recommended approvals, costs were developed as delayed earnings of 
labor. For the proposal to end some EADs early, cost flows are 
attributed to forgone future earnings (for DHS affirmative cases only). 
For the 365-day EAD filing clock, costs were assigned to forgone or 
delayed earnings as well. For this provision, a robust analysis was 
offered for the 39,000 DHS affirmative asylum cases that could be 
analyzed, and a slightly less robust analysis was presented for DHS 
referrals to DOJ-EOIR, due to data constraints. Lastly, a maximum 
estimate of forgone earnings was estimated for the residual population 
under the 365-day filing clock. There is also a net cost-savings due to 
the potential that some current filers may not need to file for an EAD 
in the future.
    Second, with the exception of the biometrics proposal, the other 
provisions for which quantified cost flows are allocated, above, also 
incur a reduction in tax transfer payments from employers and employees 
to the government if companies cannot find reasonable substitutes for 
the labor the asylum applicant would have provided. As a third module, 
there could be a first year added cost and also a tax transfer 
applicable to the existing pool of 360 EADs that could be ended early. 
Table 19 presents the flow costs for the relevant provisions, 
undiscounted and in order of the low (A) and high wage (B) bounds 
relied upon. The cost figures

[[Page 62415]]

for the 365-day EAD wait include the net cost-savings.

                  Table 19(A)--Annual Flow Costs for Provisions of the Proposed Rule in Which Costs Could Be Monetized--Low Wage Bound
                                                                [Undiscounted, 2019-2028]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                     Eliminate
                 Year                      365 day EAD         Biometrics       End some EADs       recommended     Residual (365 day     Annual total
                                              filing                                early            approvals         EAD filing)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.....................................       $269,509,609        $27,970,644        $15,791,323         $6,907,779     $1,189,561,994     $1,509,741,349
2.....................................        269,509,609         27,049,255          6,970,070          6,907,779      1,189,561,994      1,499,998,706
3.....................................        269,509,609         27,049,255          6,970,070          6,907,779      1,189,561,994      1,499,998,706
4.....................................        269,509,609         27,049,255          6,970,070          6,907,779      1,189,561,994      1,499,998,706
5.....................................        269,509,609         27,049,255          6,970,070          6,907,779      1,189,561,994      1,499,998,706
6.....................................        269,509,609         27,049,255          6,970,070          6,907,779      1,189,561,994      1,499,998,706
7.....................................        269,509,609         27,049,255          6,970,070          6,907,779      1,189,561,994      1,499,998,706
8.....................................        269,509,609         27,049,255          6,970,070          6,907,779      1,189,561,994      1,499,998,706
9.....................................        269,509,609         27,049,255          6,970,070          6,907,779      1,189,561,994      1,499,998,706
10....................................        269,509,609         27,049,255          6,970,070          6,907,779      1,189,561,994      1,499,998,706
                                       -----------------------------------------------------------------------------------------------------------------
    Undiscounted 10-year total........      2,695,096,086        271,413,939         78,521,952         69,077,788     11,895,619,940     15,009,729,703
--------------------------------------------------------------------------------------------------------------------------------------------------------


                 Table 19(B)--Annual Flow Costs for Provisions of the Proposed Rule in Which Costs Could Be Monetized--Upper Wage Bound
                                                                [Undiscounted, 2019-2028]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                     Eliminate
                 Year                      365 day EAD         Biometrics       End some EADs       recommended     Residual (365 day     Annual total
                                              filing                                early            approvals         EAD filing)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.....................................       $815,954,246        $47,568,515        $47,793,816        $20,906,995     $3,600,390,848     $4,532,614,420
2.....................................        815,954,246         45,490,315         21,095,525         20,906,995      3,600,390,848      4,503,837,930
3.....................................        815,954,246         45,490,315         21,095,525         20,906,995      3,600,390,848      4,503,837,930
4.....................................        815,954,246         45,490,315         21,095,525         20,906,995      3,600,390,848      4,503,837,930
5.....................................        815,954,246         45,490,315         21,095,525         20,906,995      3,600,390,848      4,503,837,930
6.....................................        815,954,246         45,490,315         21,095,525         20,906,995      3,600,390,848      4,503,837,930
7.....................................        815,954,246         45,490,315         21,095,525         20,906,995      3,600,390,848      4,503,837,930
8.....................................        815,954,246         45,490,315         21,095,525         20,906,995      3,600,390,848      4,503,837,930
9.....................................        815,954,246         45,490,315         21,095,525         20,906,995      3,600,390,848      4,503,837,930
10....................................        815,954,246         45,490,315         21,095,525         20,906,995      3,600,390,848      4,503,837,930
                                       -----------------------------------------------------------------------------------------------------------------
    Undiscounted 10-year total........      8,159,542,463        456,981,350        237,653,539        209,069,952     36,003,908,480     45,067,155,790
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The data in Table 19 are utilized to attain the discounted costs of 
the proposed rule. Since the first year of the rule's effects will 
include the additional costs applicable to ending some EADs early, the 
annual effect is not constant across all ten years is not the same, and 
therefore, the average annualized equivalence cost will be different 
across interest rates. The total ten-year present values, in order of 3 
and 7 percent rates of discount, are $12,804,752,094 and 
$10,544,468,497. In the same order, the average annualized equivalence 
costs are $1,501,107,575 and $1,501,295,092. At the upper wage bound, 
the total ten-year present values, in order of 3 and 7 percent rates of 
discount, are $38,446,589,427 and $31,659,966,864. In the same order, 
the average annualized equivalence costs are $4,507,113,156 and 
$4,507,667,019.
    Table 20 reports the total quantified tax transfers for the 
proposed rule, based on the provisions for which quantification is 
possible.

Table 20--Annual Tax Transfers For Provisions Under Which Taxes Could Be
                         Estimated and Monetized
                             [Undiscounted]
------------------------------------------------------------------------
             Provision                Low wage bound    Upper wage bound
------------------------------------------------------------------------
365 day EAD filing wait...........        $41,307,429       $125,020,538
Biometrics........................                  0                  0
End Some EADs early...............          1,066,421          3,227,615
Eliminate Recommended Approvals...          1,056,890          3,198,770
Residual 365-day filing wait......        182,002,985        550,859,800
Subtotal annual tax transfers.....        225,433,725       682,306,7243
Plus: First year added tax of               1,349,652          4,084,839
 ending some EADs early...........
Equals: Total tax transfers in            226,783,377        686,391,562
 first year.......................
------------------------------------------------------------------------

    Finally, this section concludes with Table 21, which collates the 
monetized impacts of the rule, in terms of both costs (A) and taxes 
(B), and provides the midrange of them.

[[Page 62416]]



                                Table 21(A)--Monetized Costs of the Proposed Rule
                                       [Discounted, $ millions, 2019-2028]
----------------------------------------------------------------------------------------------------------------
                                                                                                       Range
                                                                     Low wage       Upper range      midpoint
----------------------------------------------------------------------------------------------------------------
3 percent discount (ten-year PV)................................       $12,804.8       $38,446.6       $25,625.7
7 percent discount (ten-year PV)................................        10,544.5        31,660.0        21,102.2
3 percent discount (average annual equivalence).................         1,501.1         4,507.1         3,004.1
7 percent discount (average annual equivalence).................         1,501.3         4,507.7         3,004.5
----------------------------------------------------------------------------------------------------------------


                            Table 21(B)--Monetized Tax Transfers of the Proposed Rule
                                             [$ millions, 2019-2028]
----------------------------------------------------------------------------------------------------------------
                                                                                                       Range
                                                                     Low wage       Upper range      midpoint
----------------------------------------------------------------------------------------------------------------
3 percent discount (ten-year)...................................         1,924.3         5,824.2         3,874.2
7 percent discount (ten-year)...................................         1,584.6         4,796.1         3,190.3
3 percent discount (average annual equivalence).................           225.6           682.8           454.2
7 percent discount (average annual equivalence).................           225.6           682.9           454.2
----------------------------------------------------------------------------------------------------------------

Module 3. Unquantified Costs and Transfers
    There are several populations related to specific proposals that 
would incur costs due to the proposed rule, but, given data 
constraints, DHS is unable to measure the possible costs and transfer 
payments in a quantitative fashion.
    DHS proposes to exclude, with certain exceptions, aliens who 
entered or attempted to enter the United States at a place and time 
other than lawfully through a U.S. port of entry from eligibility for 
(c)(8) employment authorization. The rule also proposes to exclude from 
eligibility for (c)(8) employment authorization aliens who have been 
convicted of any U.S. felony or any serious non-political crime outside 
the United States, or who have been convicted of certain public safety 
offenses in the United States. DHS is unable to estimate the population 
that would be impacted by the provisions dealing with illegal entry and 
criminality. If any person incumbent to these populations would be 
delayed in or precluded from obtaining an EAD, the distributional 
impacts in terms of earnings would apply, as would, potentially, tax 
transfers.
    DHS proposes to apply changes made by this rule to all initial and 
renewal applications for employment authorization filed on or after the 
effective date of the final rule, with limited exceptions. DHS would 
apply two of the proposed ineligibility provisions--those relating to 
certain criminal offenses and failure to file the asylum application 
within one year of the alien's last entry to the US--to initial and 
renewal applications for employment authorization pending on the 
effective date of the final rule. DHS estimates 14,451 potentially 
affected pending applications. DHS estimates an annual renewal 
population of 104,163. DHS cannot quantify how many of the 14,451 
pending EAD filings or 104,163 annual renewals would be subject to the 
criminal and one-year-filing provisions when the rule goes into effect 
or how many would be precluded from obtaining an EAD. Lost compensation 
for pending and renewal EAD applicants precluded from obtaining an EAD 
would result in costs to businesses and/or distributional impacts in 
the form of transfers, depending on if the business is able to find 
replacement labor for the job the asylum applicant would have filled. 
If businesses are unable to find replacement labor, it would both 
result in a loss of business productivity and also in a reduction in 
taxes transferred from asylum applicants and employers to Federal, 
state and local governments.
    DHS also proposes to deny (c)(8) EAD applications filed on or after 
the effective date by aliens who have failed to file for asylum within 
one year of their last arrival in the United States, as required by 
law, unless and until an asylum officer or IJ determines that an 
exception to the one-year filing bar does not apply. DHS makes about 
8,472 such referrals to DOJ-EOIR each year (Table 12). For aliens who 
are granted an exception to the bar, it is possible that they would 
likely face deferred earnings and lost taxes along the lines we have 
developed for the quantified costs, due to delays in filing subject to 
the IJ decision. Others would likely not be granted an EAD and would 
lose earnings altogether. DHS has no data that would enable estimation 
of these effects as a result of the one-year filing bar provision. 
Specifically, while DHS does have data on the filing bar referrals and 
the associated I-765s, we do not have data on the outcome of these 
filing bar referrals. EADs linked to defensive asylum cases could also 
be impacted by the filing bar conditions proposed.
    As discussed previously, DHS is also proposing to revise its 
regulations prescribing when employment authorization terminates 
following the denial of an asylum application. In the above quantified 
analysis DHS estimates the cost of these changes for asylum cases 
denied by an asylum officer. DHS discusses here the impacts for asylum 
cases denied by an IJ. Under the baseline, when an IJ denies an asylum 
application, the EAD terminates on the date the EAD expires, unless the 
asylum applicant seeks administrative or judicial review. This rule 
proposes that for cases USCIS refers to DOJ-EOIR and cases defensively 
filed with DOJ-EOIR, employment authorization would continue for 30 
days following the date that the IJ denies the asylum application to 
account for a possible appeal of the denial to the BIA. If the alien 
files a timely appeal, employment authorization would continue, and the 
alien would be able to file a renewal EAD application. As shown in 
Table 9, from 2014-2018 DOJ-EOIR denied an average of 14,820 asylum 
applications annually. However, the data available to DHS does not map 
DOJ-EOIR case dispositions to DHS employment authorizations, and thus 
we cannot estimate how many denied or dismissed asylum claims by an IJ 
or BIA are connected to authorized EADs, either on an annualized flow 
or current pool basis. For DHS affirmative asylum, the populations (215 
and 360, in order) were small. The numbers are likely to be higher for 
DOJ-EOIR, since DHS makes

[[Page 62417]]

so many referrals to them, and, since DOJ-EOIR solely handles defensive 
cases. Aliens with an EAD who are denied asylum would eventually be out 
of the labor force even without this rule. Therefore, the cost for an 
employer to replace the employee (turnover cost) is not a cost of this 
rule. However, this rule would impact the timing of when such workers 
would be separated, which could vary. This rule would result in 
employers incurring such turnover costs earlier than without this rule.
    This proposed rule seeks to clarify that aliens with a positive 
credible fear finding are not eligible to seek immediate work 
authorization under 8 CFR 274a.12(c)(11), although, historically USCIS 
has granted many of these requests, an average of approximately 13,000 
annually. Such aliens would still be eligible to apply for a (c)(8) 
employment authorization to become employment authorized subject to the 
eligibility changes proposed in this rule, including the proposed 365-
day waiting period. Accordingly, applicants that apply for an EAD from 
the current (c)(11) category may experience a delay in earnings. It is 
possible that some of the applicants under this scenario would have 
their asylum decision within 365 days and thus would potentially not 
file for an EAD. It is recalled that an adjustment was made for this 
possibility in the development of the biometrics requirement provision 
costs. It is also possible that some may not file as transfers for 
other reasons. As a result, the actual affected population would most 
likely be below 13,000. USCIS is unable to develop a cost of lost or 
delayed earnings for this group because DHS does not have the related 
asylum information, so DHS does not have the data necessary to 
correctly segment the costs.
    In some cases, the changes in protocol could result in applicant-
caused delays in receiving an EAD because the purpose of the rule is to 
generate disincentives to applicants to cause any delays in the 
adjudication of their asylum application. Any such delays in earnings 
could generate economic hardship to aliens in terms of delayed 
earnings. The proposed rule would amend existing language to clarify 
that an applicant's failure to appear to receive and acknowledge 
receipt of the decision following an interview and a request for an 
extension to submit additional evidence will be considered applicant-
caused delays for purposes of eligibility for employment authorization. 
DHS further proposes that any documentary evidence submitted fewer than 
14 calendar days before the asylum interview (with allowance for a 
brief extension to submit additional evidence as a matter of 
discretion) may result in an applicant-caused delay if it delays the 
adjudication of the asylum application. The purpose of this provision 
is to improve administrative efficiency and aid in the meaningful 
examination and exploration of evidence in preparation for and during 
the interview. The purpose of the rule is to generate disincentives to 
applicants to cause any delays in the adjudication of their asylum 
application. While DHS has no way of predicting how the disincentives 
might take effect, in some cases, the changes in protocol could result 
in applicant-caused delays in receiving an EAD, and therefore could 
impose costs. DHS welcomes public input on this topic.
    In addition to the major provisions being proposed, there are 
numerous technical changes, clarifications to existing language, and 
amendments to existing language. DHS seeks to clarify how an asylum 
applicant's failure to appear for an asylum interview or biometric 
services appointment will affect his or her eligibility for asylum or 
employment authorization and proposes a new timeframe and standard for 
rescheduling an asylum interview for the asylum application. In 
addition, DHS clarifies that USCIS is not obligated to send any notice 
to the applicant about his or her failure to appear at a scheduled 
biometric services appointment or an asylum interview as a prerequisite 
to denying the asylum application or referring it to an IJ. These 
amendments are intended to facilitate more timely and efficient case 
processing when applicants fail to appear for essential appointments. 
Finally, the amendments replace references to fingerprint processing 
and fingerprint appointment with the presently employed ``biometric 
services appointment.''
    DHS also proposes to remove the language providing that an 
application for asylum will automatically be deemed ``complete'' if 
USCIS fails to return the incomplete application to the applicant 
within a 30-day period. 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. These 
amendments and technical codifications outlined above and discussed in 
more detail in the preamble could impact the specific protocol, timing, 
and variations in which applicants interact with DHS over the asylum 
and concomitant EAD process.
b. Benefits
    The benefits potentially realized by the proposed rule are 
qualitative. It is not possible to monetize the benefits. Aliens with 
bona fide asylum claims will be prioritized because the incentives for 
aliens to file frivolous, fraudulent, or otherwise non-meritorious 
asylum applications intended primarily to obtain employment 
authorization will be reduced. A streamlined system for employment 
authorizations for asylum seekers would reduce fraud and improve 
overall integrity and operational efficiency, thereby benefiting the 
U.S. Government and the public.
    The proposed changes will remove incentives for aliens to enter the 
United States illegally for economic reasons and allow DHS to process 
bona fide asylum seekers who present themselves at the U.S. ports of 
entry in an expedited manner. DHS also believes these administrative 
reforms will encourage aliens to follow the lawful process to immigrate 
to the United States, which will reduce injuries and deaths that occur 
during dangerous illegal entries, and reduce expenditures by government 
agencies that are charged with enforcing the immigration laws of the 
United States. These impacts stand to provide qualitative benefits to 
asylum seekers, the communities in which they reside and work, the U.S. 
Government, and society at large.
    The proposed rule is also beneficial in the context that providing 
employment authorization to inadmissible and removable undermines the 
removal scheme created by Congress and incentivizes such aliens to come 
to and remain in the United States.\121\ Doing so also undermines the 
Administration's goals of strengthening protections for U.S. workers in 
the labor market.\122\

[[Page 62418]]

Several employment-based visa programs require U.S. employers to test 
the labor market, comply with recruiting standards, agree to pay a 
certain wage level, and agree to comply with standards for working 
conditions before they can hire an alien to fill the position. These 
protections do not exist in the (c)(8) EAD program.
---------------------------------------------------------------------------

    \121\ In a few limited circumstances, Congress has authorized 
the Secretary to grant employment authorization, as a matter of 
discretion, to aliens who are inadmissible or deportable and even 
when they have a final order of removal from the United States. See, 
e.g., INA sec. 236(a)(3), 8 U.S.C. 1226(a)(3) (discretionary 
employment authorization for inadmissible or removable aliens with 
pending removal proceedings); INA sec. 241(a)(7), 8 U.S.C. 
1231(a)(7) (discretionary employment authorization for certain 
aliens with final orders of removal).
    \122\ Aliens who file adjustment of status applications even if 
they do not ultimately qualify for adjustment of status to permanent 
residence and aliens who are temporarily placed in deferred action, 
are allowed to apply for EADs. If DHS approves the application for 
employment authorization, these aliens receive ``open market'' 
EADs--meaning that they may accept employment in any field and may 
be hired by any U.S. employer without the U.S. employer having to 
demonstrate that there were no available U.S. workers or guarantee 
that that it will pay the prevailing wage or maintain certain work 
conditions. As a result, such aliens are more likely to directly 
compete with U.S. workers for employment.
---------------------------------------------------------------------------

    The proposed biometrics requirement would provide a benefit to the 
U.S. Government by enabling DHS to know with greater certainty the 
identity of aliens seeking (c)(8) EADs and more easily vet those aliens 
for benefit eligibility. This would also provide DHS with the ability 
to limit identity fraud because biometrics are unique physical 
characteristics that are difficult to falsify and do not change over 
time.
c. Impact to Labor Force and Taxes
    The proposed rule, when finalized, is not expected to have a 
significant impact on states or the national labor force. The national 
civilian labor force is 163,922,000, for which the proposed rule's 
maximum population of 304,562 (first year) and 289,751 (each year 
after) would represent just .19, and .18 percent of the labor force, in 
order.\123\ It is possible that if all or a large share of the relevant 
EAD holders were concentrated in a specific metropolitan statistical 
area, the population relevant to the proposed rule could represent a 
larger share of the labor force (locally), but DHS does not expect 
impacts to the labor market.
---------------------------------------------------------------------------

    \123\ Relevant calculations: 304,888/163,922,000 = .00186, which 
is rounded and multiplied by 100 to equal .19 percent, and 289,751/
163,922,000 = .00177, which is rounded and multiplied by 100 to 
equal .18 percent. The labor force figure represents the civilian 
labor force, seasonally adjusted, for August 2019, and is found in 
``Table A-1. Employment status of the civilian population by sex and 
age,'' Economic News Release at: https://www.bls.gov/news.release/archives/empsit_09062019.htm.
---------------------------------------------------------------------------

    The provisions would generate costs in terms of distributional 
impacts in the form of deferred and lost compensation. Additionally, 
some of the lost tax transfers could be incurred by states. The total 
reduction in employment tax transfers from employers and employees to 
the Federal Government could range from $225.6 million to $682.9 
million annually (annualized at 7%). There could also be a reduction in 
income tax transfers from employers and employees that could impact 
individual states and localities.
    In addition, some states, municipalities, or other geographic 
entities could have budgets that assist persons awaiting asylum. Of the 
period in which asylum applicants wait for an EAD is extended, there 
could be an impact to those entities, and possibly, to family, social, 
or other assistance networks.

B. Regulatory Flexibility Act (RFA)

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996, Public Law 104-121 (March 29, 1996), requires Federal agencies to 
consider the potential impact of regulations on small businesses, small 
governmental jurisdictions, and small organizations during the 
development of their rules. The term ``small entities'' comprises small 
businesses, not-for-profit organizations that are independently owned 
and operated and are not dominant in their fields, or governmental 
jurisdictions with populations of less than 50,000.\124\
---------------------------------------------------------------------------

    \124\ A small business is defined as any independently owned and 
operated business not dominant in its field that qualifies as a 
small business per the Small Business Act, 15 U.S.C. 632.
---------------------------------------------------------------------------

    This proposed rule would make significant changes to the process by 
which aliens seeking asylum in the United States can apply for EADs 
while their asylum claims are pending either with DHS or DOJ-EOIR. DHS 
has estimated that rule would cover a maximum quantified population of 
about 305,000 aliens, with smaller sub-populations applicable to 
specific, individual provisions. We assess that this rule's proposed 
changes do not fall under the RFA because they directly regulate 
individuals who are not, for purposes of the RFA, within the definition 
of small entities established by 5 U.S.C. 601(6).
    As previously explained, several of the provisions being proposed 
may result in deferred or forgone labor earnings compensation for 
asylum applicants. In addition, some aliens would not be able to obtain 
an EAD in the future that otherwise could currently. However, these 
provisions do not directly regulate employers.
    While the RFA does not require agencies to examine the impact of 
indirect costs to small entities, DHS is unable to identify the next 
best alternative to hiring a pending asylum applicant and is therefore 
unable to reliably estimate the potential indirect costs to small 
entities from this proposed rule but requests comments from the public 
that would assist in understanding costs not described herein.
(1) A Description of the Reasons Why the Action by the Agency Is Being 
Considered
    The rule is being proposed in order to reform the asylum 
application and associated employment authorization application process 
in order to prioritize bona fide claims and reduce frivolous and non-
meritorious asylum filings. The proposed rule is necessary because it 
has been a long time since significant statutory changes have been made 
to the asylum provisions that would effectively address the current 
aspects of the immigration laws that incentivize illegal immigration 
and frivolous asylum filings. Furthermore, the rule could address 
several of the ``pull'' factors that encourage aliens to enter the 
United States without being inspected and admitted or paroled and to 
file non-meritorious asylum claims to obtain employment authorization 
or other non-asylum based forms of relief from removal. These ``pull'' 
factors have led, in part, to a significant increase in illegal 
immigration and in asylum filings, which has generated a severe backlog 
of cases and an overwhelming volume of non-meritorious cases.
(2) A Succinct Statement of the Objectives of, and Legal Basis for, the 
Proposed Rule
    The objective of the proposed rule is to disassociate employment 
authorization from asylum applications and minimize the abuse of the 
asylum process by inadmissible or removable aliens who are not eligible 
for asylum but seek to prolong their stay in the United States for 
economic reasons. The proposed changes will remove incentives for 
aliens to enter the United States illegally for economic reasons and 
allow DHS to process bona fide asylum seekers who present themselves at 
U.S. ports of entry in an expedited manner. DHS also believes these 
administrative reforms will encourage aliens to follow the lawful 
process to immigrate to the United States.
    The authority of the Secretary of Homeland Security (Secretary) for 
these regulatory amendments is found in various sections of the 
Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and the 
Homeland Security Act of 2002 (HSA), Public Law 107-296, 116 Stat. 
2135, 6 U.S.C. 101 et seq. General authority for issuing the proposed 
rule is found in section 103(a) of the INA, 8 U.S.C. 1103(a), which 
authorizes the Secretary to administer and enforce the

[[Page 62419]]

immigration and nationality laws and to establish such regulations as 
he deems necessary for carrying out such authority.
(3) A Description of and, Where Feasible, an Estimate of the Number of 
Small Entities to Which the Proposed Rule Will Apply
    This proposed rule would directly change aspects of the asylum 
process related to how and when asylum applicants can apply for and 
obtain EADs, when asylum applicants' employment authorization is 
terminated, as well as their eligibility for EADs. The rule would delay 
asylum applicants' employment authorization, remove certain aliens' 
eligibility for employment, and terminate certain aliens' employment 
eligibility earlier than without this rule. This rule does not directly 
regulate small entities and thus the number of small entities to which 
the proposed rule would directly regulate is zero. However, this rule 
would indirectly impact small entities that may employ affected EAD 
holders. DHS does not have information on where affected aliens obtain 
employment and thus is unable to estimate the number of small entities 
that may be indirectly impacted by this rule.
(4) A Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements of the Proposed Rule, Including an Estimate of 
the Classes of Small Entities Which Will Be Subject to the Requirement 
and the Type of Professional Skills Necessary for Preparation of the 
Report or Record
    This proposed rule would not directly impose any reporting, 
recordkeeping, or other compliance requirements on small entities. 
Additionally, this rule would not require any additional professional 
skills.
(5) Identification, to the Extent Practicable, of All Relevant Federal 
Rules That May Duplicate, Overlap or Conflict With the Proposed Rule
    DHS is unaware of any relevant Federal rule that may duplicate, 
overlap, or conflict with the proposed rule. DHS is the sole 
administrator of employment authorization applications. DOJ may issue 
conforming changes to its regulations at a later date. DHS is also in 
the process of drafting proposed rulemaking broadening biometrics 
collection. Although the Form I-765 is involved in this separate broad 
biometrics collection proposal, the present proposed rule focuses 
specifically on the I-765(c)(8) eligibility category. There could be 
some overlap between the two proposed rules, but such overlap is not 
expected to create new costs or burdens.
(6) Description of Any Significant Alternatives to the Proposed Rule 
Which Accomplish the Stated Objectives of Applicable Statutes and Which 
Minimize Any Significant Economic Impact of the Proposed Rule on Small 
Entities
    DHS is not aware of any alternatives to the proposed rule that 
accomplish the stated objectives and that would minimize the economic 
impact of the proposed rule on small entities as this rule imposes no 
direct costs on small entities. DHS requests comments and seeks 
alternatives from the public that will accomplish the same objectives.

C. Congressional Review Act

    This proposed rule is a major rule as defined by 5 U.S.C. 804, also 
known as the ``Congressional Review Act,'' as enacted in section 251 of 
the Small Business Regulatory Enforcement Fairness Act of 1996, Public 
Law 104-121, 110 Stat. 847, 868 et seq. Accordingly, this rule, if 
enacted as a final rule, would be effective at least 60 days after the 
date on which Congress receives a report submitted by DHS under the 
Congressional Review Act, or 60 days after the final rule's 
publication, whichever is later.

D. Unfunded Mandates Reform Act of 1995 (UMRA)

    The Unfunded Mandates Reform Act of 1995 (UMRA) requires each 
Federal agency to prepare a written statement assessing the effects of 
any Federal mandate in a proposed or final agency rule that may result 
in a $100 million or more expenditure (adjusted annually for inflation) 
in any one year by state, local, and tribal governments, in the 
aggregate, or by the private sector.
    Because this proposed rulemaking does not impose any Federal 
mandates on State, local, or tribal governments, in the aggregate, or 
the private sector, this rulemaking does not contain such a written 
statement.

E. Executive Order 13132 (Federalism)

    This rule will not have substantial direct effects on the States, 
on the relationship between the National Government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. DHS does not expect that this proposed rule would 
impose substantial direct compliance costs on State and local 
governments or preempt State law. Therefore, in accordance with section 
6 of Executive Order 13132, it is determined that this rule does not 
have sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

F. Executive Order 12988 (Civil Justice Reform)

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988.

G. Executive Order 13175 (Consultation and Coordination With Indian 
Tribal Governments)

    This proposed rule does not have tribal implications under 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments, because it would not have a substantial direct effect on 
one or more Indian tribes, on the relationship between the Federal 
Government and Indian tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian tribes.

H. Family Assessment

    DHS has assessed this action in accordance with section 654 of the 
Treasury General Appropriations Act, 1999, Public Law 105-277, Div. A. 
With respect to the criteria specified in section 654(c)(1), DHS has 
determined that the proposed rule will delay the ability for initial 
applicants to work and limiting or prohibit some from working based on 
criminal and immigration history, which will decrease disposable income 
of those applicants with families. A portion of this lost compensation 
might be transferred from asylum applicants to others that are 
currently in the U.S. labor force, or, eligible to work lawfully, 
possibly in the form of additional work hours or the direct and 
indirect added costs associated with overtime pay. DHS does not know 
how many applicants contribute to family disposable income. The total 
lost compensation to the pool of potential asylum applicants could 
range from about $319 million to $930 million annually, depending on 
the wages the asylum applicant would have earned. For the reasons 
stated elsewhere in this preamble, however, DHS has determined that the 
benefits of the action justify the potential financial impact on the 
family.

I. National Environmental Policy Act (NEPA)

    DHS analyzes actions to determine whether NEPA applies to them and 
if so what degree of analysis is required. DHS Directive (Dir) 023-01 
Rev. 01 and Instruction (Inst.) 023-01-001 rev. 01 establish the 
procedures that DHS and

[[Page 62420]]

its components use to comply with NEPA and the Council on Environmental 
Quality (CEQ) regulations for implementing NEPA, 40 CFR parts 1500 
through 1508. The CEQ regulations allow Federal agencies to establish, 
with CEQ review and concurrence, categories of actions (``categorical 
exclusions'') which experience has shown do not individually or 
cumulatively have a significant effect on the human environment and, 
therefore, do not require an Environmental Assessment (EA) or 
Environmental Impact Statement (EIS). 40 CFR 1507.3(b)(1)(iii), 1508.4. 
DHS Instruction 023-01-001 Rev. 01 establishes such Categorical 
Exclusions that DHS has found to have no such effect. Inst. 023-01-001 
Rev. 01 Appendix A Table 1. For an action to be categorically excluded, 
DHS Inst. 023-01-001 Rev. 01 requires the action to satisfy each of the 
following three conditions: (1) The entire action clearly fits within 
one or more of the Categorical Exclusions; (2) the action is not a 
piece of a larger action; and (3) no extraordinary circumstances exist 
that create the potential for a significant environmental effect. Inst. 
023-01-001 Rev. 01 section V.B(1)-(3). This proposed rule would amend 
the administrative procedure for filing an affirmative asylum 
application in the United States, and strengthen eligibility 
requirements for employment authorization based on a pending asylum 
application.
    DHS analyzed this action and has concluded that NEPA does not apply 
due to the excessively speculative nature of any effort to conduct an 
impact analysis. Nevertheless, if NEPA did apply to this action, the 
action clearly would come within our categorical exclusion A.3(d) as 
set forth in DHS Inst. 023-01-001 Rev. 01, Appendix A, Table 1.
    This rule is not part of a larger action and presents no 
extraordinary circumstances creating the potential for significant 
environmental effects. Therefore, if NEPA were determined to apply, 
this rule would be categorically excluded from further NEPA review.

J. National Technology Transfer and Advancement Act

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through OMB, with an explanation of why using these standards would be 
inconsistent with applicable law or otherwise impractical. Voluntary 
consensus standards are technical standards (e.g., specifications of 
materials, performance, design, or operation; test methods; sampling 
procedures; and related management systems practices) that are 
developed or adopted by voluntary consensus standard bodies. This 
proposed rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

K. Executive Order 12630 (Governmental Actions and Interference With 
Constitutionally Protected Property Rights)

    This proposed rule would not cause the taking of private property 
or otherwise have taking implications under Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights.

L. Executive Order 13045 (Protection of Children From Environmental 
Health Risks and Safety Risks)

    Executive Order 13045 requires agencies to consider the impacts of 
environmental health risk or safety risk that may disproportionately 
affect children. DHS has reviewed this proposed rule and determined 
that this rule is not a covered regulatory action under Executive Order 
13045. Although the rule is economically significant, it would not 
create an environmental risk to health or risk to safety that might 
disproportionately affect children. Therefore, DHS has not prepared a 
statement under this executive order.

M. Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use)

    Executive Order 13211 requires agencies to consider the impact of 
rules that significantly impact the supply, distribution, and use of 
energy. DHS has reviewed this proposed rule and determined that this 
proposed rule would not have a significant adverse effect on the 
supply, distribution, or use of energy. Therefore, this proposed rule 
does not require a Statement of Energy Effects under Executive Order 
13211.

N. Paperwork Reduction Act (PRA)

    Under the Paperwork Reduction Act of 1995, Public Law 104-13, 
agencies are required to submit to OMB, for review and approval, any 
reporting requirements inherent in a rule. Table 19 shows a summary of 
the forms that are part of this rulemaking.

                                   Table 19--Summary of Impacts to USCIS Forms
----------------------------------------------------------------------------------------------------------------
                 Form                         Form name           New or updated form    General purpose of form
----------------------------------------------------------------------------------------------------------------
I-589................................  Application for Asylum   Update--revises and      This form is used by
                                        and for Withholding of   adds instructions for    applicants to apply
                                        Removal.                 employment               for asylum or
                                                                 authorization while      withholding of removal
                                                                 asylum application is    under the Act or the
                                                                 pending.                 Convention Against
                                                                                          Torture (CAT).
I-765................................  Application for          Update--revises and      This form is used by
                                        Employment               adds instructions and    applicants to request
                                        Authorization.           questions for aliens     employment
                                                                 seeking employment       authorization from
                                                                 authorization under      USCIS.
                                                                 the (c)(8) eligibility
                                                                 category.
----------------------------------------------------------------------------------------------------------------

USCIS Form I-589

    DHS invites comment on the impact to the proposed collection of 
information. In accordance with the PRA, the information collection 
notice is published in the Federal Register to obtain comments 
regarding the proposed edits to the information collection instrument.
    Comments are encouraged and will be accepted for 60 days from the 
publication date of the proposed rule. All submissions received must 
include the OMB Control Number 1615-0067 in the body of the letter and 
the agency name. To avoid duplicate submissions, please use only one of 
the methods under the ADDRESSES and I. Public Participation section of 
this rule to submit comments. Comments on this information collection 
should address one or more of the following four points:
    1. Evaluate whether the collection of the information is necessary 
for the proper performance of the functions of the agency, including 
whether the information will have practical utility;

[[Page 62421]]

    2. Evaluate the accuracy of the agency's estimate of the burden of 
the collection of information, including the validity of the 
methodology and assumptions used;
    3. Enhance the quality, utility, and clarity of the information to 
be collected; and
    4. Minimize the burden of the collection of information on those 
who are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology, e.g., permitting electronic 
submission of responses.

Overview of Information Collection

    (1) Type of Information Collection: Revision of a Currently 
Approved Collection.
    (2) Title of the Form/Collection: Application for Asylum and for 
Withholding of Removal
    (3) Agency form number, if any, and the applicable component of the 
DHS sponsoring the collection: Form I-589; USCIS.
    (4) Affected public who will be asked or required to respond, as 
well as a brief abstract: Primary: Individuals and households. The data 
collected on this form will be used by USCIS to determine if the alien 
is eligible for asylum or withholding of removal.
    (5) An estimate of the total number of respondents and the amount 
of time estimated for an average respondent to respond: The estimated 
total number of respondents for the information collection Form I-589 
is 114,000 and the estimated hour burden per response is 12 hours; the 
estimated total number of respondents for the information collection 
Biometrics is 110,000 and the estimated hour burden per response is 
1.17 hours.
    (6) An estimate of the total public burden (in hours) associated 
with the collection: The total estimated annual hour burden associated 
with this collection is 1,496,700 hours.
    (7) An estimate of the total public burden (in cost) associated 
with the collection: The estimated total annual cost burden associated 
with this information collection is $46,968,000.

USCIS Form I-765

    DHS invites comment on the impact to the proposed collection of 
information. In accordance with the PRA, the information collection 
notice is published in the Federal Register to obtain comments 
regarding the proposed edits to the information collection instrument.
    Comments are encouraged and will be accepted for 60 days from the 
publication date of the proposed rule. All submissions received must 
include the OMB Control Number 1615-0040 in the body of the letter and 
the agency name. To avoid duplicate submissions, please use only one of 
the methods under the ADDRESSES and I. Public Participation section of 
this rule to submit comments. Comments on this information collection 
should address one or more of the following four points:
    5. Evaluate whether the collection of the information is necessary 
for the proper performance of the functions of the agency, including 
whether the information will have practical utility;
    6. Evaluate the accuracy of the agency's estimate of the burden of 
the collection of information, including the validity of the 
methodology and assumptions used;
    7. Enhance the quality, utility, and clarity of the information to 
be collected; and
    8. Minimize the burden of the collection of information on those 
who are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology, e.g., permitting electronic 
submission of responses.

Overview of Information Collection

    (1) Type of Information Collection: Revision of a currently 
approved collection.
    (2) Title of the Form/Collection: Application for Employment 
Authorization
    (3) Agency form number, if any, and the applicable component of the 
DHS sponsoring the collection: Form I-765; USCIS
    (4) Affected public who will be asked or required to respond, as 
well as a brief abstract:
    Primary: Individuals and households. USCIS requires an alien 
seeking employment authorization to file the Form I-765. The data 
collected on this form will be used by USCIS to determine if the 
individual seeking employment authorization qualifies under the 
categories of aliens who may apply for employment authorization under 8 
CFR 274a.12.
    (5) An estimate of the total number of respondents and the amount 
of time estimated for an average respondent to respond: The estimated 
total number of respondents for the information collection Form I-765 
is 2,036,026 and the estimated hour burden per response is 4.75 hours; 
the estimated total number of respondents for the information 
collection biometrics is 346,589 and the estimated hour burden per 
response is 1.17 hours; the estimated total number of respondents for 
the information collection Form I-765WS is 41,912 and the estimated 
hour burden per response is .50 hours; the estimated total number of 
respondents for the information collection passport-style photographs 
is 2,036,026 and the estimated hour burden per response is .50 hours.
    (6) An estimate of the total public burden (in hours) associated 
with the collection: The total estimated annual hour burden associated 
with this collection is 11,115,602 hours.
    (7) An estimate of the total public burden (in cost) associated 
with the collection: The estimated total annual cost burden associated 
with this information collection is $669,852,554.

List of Subjects

8 CFR Part 208

    Administrative practice and procedure, Aliens, Immigration, 
Reporting and recordkeeping requirements.

8 CFR Part 274a

    Administrative practice and procedure, Aliens, Employment, 
Penalties, Reporting and recordkeeping requirements.

    Accordingly, DHS proposes to amend parts 208 and 274a of chapter I, 
subchapter B, of title 8 of the Code of Federal Regulations as follows:

PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL

0
1. The authority citation for part 208 continues to read as follows:

    Authority:  8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title 
VII of Public Law 110-229; 8 CFR part 2.

0
2. Amend Sec.  208.3 by revising paragraph (c)(3) to read as follows:


Sec.  208.3   Form of application.

* * * * *
    (c) * * *
    (3) An asylum application must be properly filed in accordance with 
8 CFR part 103 and the filing instructions. Receipt of a properly filed 
asylum application will commence the 365-day period after which the 
applicant may file an application for employment authorization in 
accordance with Sec.  208.7 and 8 CFR 274a.12 and 274a.13.
* * * * *
0
3. Amend Sec.  208.4 by revising paragraph (c) to read as follows:

[[Page 62422]]

Sec.  208.4   Filing the application.

* * * * *
    (c) Amending an application after filing. Upon the request of the 
alien, and as a matter of discretion, the asylum officer or Immigration 
Judge with jurisdiction may permit an asylum applicant to amend or 
supplement the application. Any delay in adjudication or in proceedings 
caused by a request to amend or supplement the application will be 
treated as a delay caused by the applicant for purposes of Sec.  208.7 
and 8 CFR 274a.12(c)(8).
0
4. Revise Sec.  208.7 to read as follows:


Sec.  208.7   Employment authorization.

    (a) Application and decision. (1)(i) In General. Subject to the 
restrictions contained in sections 208(d) and 236(a) of the Act, and 
except as otherwise provided in paragraphs (b) and (c) of this section, 
an applicant for asylum who is in the United States may apply for 
employment authorization pursuant to 8 CFR 274a.12(c)(8) and 
274a.13(a)(2) of this chapter. The applicant must request employment 
authorization on the form and in the manner prescribed by USCIS and 
according to the form instructions, and must submit biometrics at a 
scheduled biometrics services appointment. USCIS has exclusive 
jurisdiction over all applications for employment authorization and 
employment authorization documentation based on a pending application 
for asylum under 8 CFR 274a.12(c)(8), regardless of whether the asylum 
application is pending with USCIS or the Executive Office for 
Immigration Review. Employment authorization is not permitted during 
any period of judicial review of the asylum application, but may be 
requested if a Federal court remands the case to the Board of 
Immigration Appeals. USCIS may grant initial employment authorization 
under 8 CFR 274a.12(c)(8) for a period that USCIS determines is 
appropriate at its discretion, not to exceed increments of two years.
    (ii) Period for filing. An applicant for asylum cannot apply for 
initial employment authorization earlier than 365 calendar days after 
the date USCIS or the immigration court receives the asylum application 
in accordance with 8 CFR part 103 or 8 CFR 1003.31, respectively, and 
the filing instructions on the application. If an asylum application is 
denied by USCIS before a decision on an initial or renewal application 
for employment authorization, the application for employment 
authorization will be denied.
    (iii) Asylum applicants who are ineligible for employment 
authorization. An applicant for asylum is not eligible for employment 
authorization if:
    (A) The applicant was convicted in the United States or abroad of 
any aggravated felony as described in section 101(a)(43) of the Act;
    (B) The applicant was convicted in the United States of any felony 
as defined in 18 U.S.C. 3156(a)(3);
    (C) The applicant was convicted of any serious non-political crime 
outside the United States. USCIS will consider, on a case-by-case 
basis, whether aliens who have been convicted of any non-political 
foreign criminal offense, or have unresolved arrests or pending charges 
for any non-political foreign criminal offenses, warrant a favorable 
exercise of discretion for a grant of employment authorization;
    (D) The applicant was convicted in the United States of a public 
safety offense involving:
    (1) Domestic violence, domestic assault, or any other domestic or 
spousal battery-type offense unless the applicant has been subjected to 
extreme cruelty, is not and was not the primary perpetrator of the 
violence in the relationship, and is not otherwise ineligible. If an 
applicant has unresolved domestic arrests or pending charges, USCIS 
will decide at its discretion if it will grant the applicant employment 
authorization, based on the totality of the circumstances.
    (2) Child abuse, child neglect, or any other offense against a 
child, regardless of an element of sexual or inappropriate touching. If 
an applicant has unresolved domestic arrests or pending charges, USCIS 
will decide at its discretion if it will grant the applicant employment 
authorization, based on the totality of the circumstances.
    (3) Controlled substances, including possession, possession with 
intent to distribute, or delivery. If an applicant has unresolved 
domestic arrests or pending charges, USCIS will decide at its 
discretion if it will grant the applicant employment authorization, 
based on the totality of the circumstances.
    (4) Driving or operating a motor vehicle under the influence of 
alcohol or drugs, regardless of how the arresting, charging, or 
convicting jurisdiction classifies the offense. If an applicant has 
unresolved domestic arrests or pending charges, USCIS will decide at 
its discretion if it will grant the applicant employment authorization, 
based on the totality of the circumstances.
    (E) An asylum officer or an Immigration Judge has denied the 
applicant's asylum application within the 365-day period or before the 
adjudication of the initial request for employment authorization;
    (F) The applicant filed his or her asylum application beyond the 
one-year filing deadline, unless and until the asylum officer or 
Immigration Judge determines that the applicant meets an exception for 
late filing as provided in section 208(a)(2)(D) of the Act and 8 CFR 
208.4 and 1208.4, or unless the applicant was an unaccompanied alien 
child on the date the asylum application was first filed;
    (G) The applicant is an alien who entered or attempted to enter the 
United States at a place and time other than lawfully through a U.S. 
port of entry, unless the alien demonstrates that he or she:
    (1) Presented himself or herself without delay to the Secretary of 
Homeland Security or his or her delegate;
    (2) Indicated to the Secretary of Homeland Security or his or her 
delegate an intention to apply for asylum or expresses a fear of 
persecution or torture; and
    (3) Has good cause for the illegal entry or attempted entry, 
provided such good cause does not include the evasion of U.S. 
immigration officers, convenience, or for the purpose of circumvention 
of the orderly processing of asylum seekers at a U.S. port of entry.
    (iv) Applicability. Paragraphs (a)(1)(iii)(A) through (D) of this 
section apply to applications that were filed prior to and remain 
pending on [effective date of final rule].
    (v) Delay. Any delay requested or caused by the applicant on his or 
her asylum application that is still outstanding or has not been 
remedied when USCIS adjudicates the application for employment 
authorization under 8 CFR 274a.12(c)(8) will result in a denial of such 
application. Examples of applicant-caused delays include, but are not 
limited to the list below:
    (A) A request to amend or supplement an asylum application that 
causes a delay in its adjudication or in proceedings as permitted in 8 
CFR 208.4(c);
    (B) Failure to appear to receive and acknowledge receipt of the 
decision as specified in 8 CFR 208.9(d);
    (C) A request for extension to submit additional evidence fewer 
than 14-days prior to the interview date as permitted by 8 CFR 
208.9(e);
    (D) Failure to appear for an asylum interview, unless excused by 
USCIS as described in 8 CFR 208.10(b)(1) for the failure to appear;

[[Page 62423]]

    (E) Failure to appear for scheduled biometrics collection on the 
asylum application;
    (F) A request to reschedule an interview for a later date;
    (G) A request to transfer a case to a new asylum office or 
interview location, including when the transfer is based on a new 
address;
    (H) A request to provide additional evidence for an interview;
    (I) Failure to provide a competent interpreter at an interview; and
    (J) Failure to comply with any other request needed to determine 
asylum eligibility.
    (b) Renewal and termination--(1) Renewals. USCIS may renew 
employment authorization under 8 CFR 274a.12(c)(8) in increments 
determined by USCIS in its discretion, but not to exceed increments of 
two years. Employment authorization is not permitted during any period 
of judicial review, but may be requested if a Federal court remands the 
case to the Board of Immigration Appeals. For employment authorization 
to be renewed under this section, the alien must request employment 
authorization on the form and in the manner prescribed by USCIS and 
according to the form instructions. USCIS will require that an alien 
establish that he or she has continued to pursue an asylum application 
before USCIS, an Immigration Judge, or the Board of Immigration Appeals 
and that he or she continues to meet the eligibility criteria for 
employment authorization set forth in 8 CFR 208.7(a). For purposes of 
renewal of employment authorization, pursuit of an asylum application 
before an Immigration Judge or the Board of Immigration Appeals is 
established by submitting a copy of the referral notice or Notice to 
Appear placing the alien in proceedings, any hearing notices issued by 
the immigration court, evidence of a timely filed appeal if the alien 
appealed the denial of the asylum application to the Board of 
Immigration Appeals, or remand order to the Immigration Judge or Board 
of Immigration Appeals.
    (i) Referrals to an Immigration Judge. Employment authorization 
granted after the required 365-day waiting period will continue for the 
remaining period authorized (unless otherwise terminated or revoked) if 
the asylum officer refers the alien's asylum application to an 
immigration judge . In accordance with 8 CFR 208.7(b)(1), the alien may 
be granted renewals of employment authorization while under such review 
by the Immigration Judge.
    (ii) Appeals to the Board of Immigration Appeals. If the 
Immigration Judge denies the alien's asylum application, any remaining 
period of employment authorization will continue for the period 
authorized (unless otherwise terminated or revoked) during the period 
for filing an appeal with the Board of Immigration Appeals under 8 CFR 
1003.38(b) or, if an appeal is timely filed within such period, during 
the pendency of the appeal with the Board of Immigration Appeals. In 
accordance with 8 CFR 208.7(b)(1), the alien may be granted renewals of 
employment authorization during these periods while the appeal is under 
review by the Board of Immigration Appeals and any remand to the 
Immigration Judge.
    (2) Terminations. The alien's employment authorization granted 
pursuant to 8 CFR 274a.12(c)(8) will automatically terminate effective 
on the date the asylum officer denies the asylum application, thirty 
days after an Immigration Judge denies the asylum application unless 
timely appealed to the Board of Immigration Appeals, or the Board of 
Immigration Appeals affirms or upholds a denial, regardless of whether 
any automatic extension period pursuant to 8 CFR 274a.13(d)(3) is in 
place.
    (c) Severability. The provisions in this section are intended to be 
independent severable parts. In the event that any provision in this 
section is not implemented, DHS intends that the remaining provisions 
be implemented as an independent rule.
0
5. Amend Sec.  208.9 by adding subject headings for paragraphs (a) 
through (c), revising paragraphs (d) and (e), and adding subject 
headings for paragraphs (f) and (g) to read as follows:


Sec.  208.9   Procedure for interview before an asylum officer.

    (a) Jurisdiction. * * *
    (b) Requirements for Interview. * * *
    (c) Conduct of Interview. * * *
    (d) Completion of the interview. Upon completion of the interview:
    (1) The applicant or the applicant's representative will have an 
opportunity to make a statement or comment on the evidence presented. 
The asylum officer may, in his or her discretion, limit the length of 
such statement or comment and may require its submission in writing.
    (2) USCIS will inform the applicant that he or she must appear in 
person to receive and to acknowledge receipt of the decision of the 
asylum officer and any other accompanying material at a time and place 
designated by the asylum officer, except as otherwise provided by the 
asylum officer. An applicant's failure to appear to receive and 
acknowledge receipt of the decision will be treated as delay caused by 
the applicant for purposes of 8 CFR 208.7.
    (e) Extensions. The asylum officer will consider evidence submitted 
by the applicant together with his or her asylum application. The 
applicant must submit any documentary evidence at least 14 calendar 
days in advance of the interview date. As a matter of discretion, the 
asylum officer may consider evidence submitted within the 14-day period 
prior to the interview date or may grant the applicant a brief 
extension of time during which the applicant may submit additional 
evidence. Any such extension will be treated as a delay caused by the 
applicant for purposes of Sec.  208.7.
    (f) Record.. * * *
    (g) Interpreter. * * *
* * * * *
0
6. Revise Sec.  208.10 to read as follows:


Sec.  208.10   Failure to appear for an interview before an asylum 
officer or for a biometric services appointment for the asylum 
application.

    (a) Failure to appear for asylum interview or for a biometric 
services appointment. (1) The failure to appear for an interview or 
biometric services appointment may result in:
    (i) Waiver of the right to an interview or adjudication by an 
asylum officer;
    (ii) Dismissal of the application for asylum;
    (iii) Referral of the applicant to the immigration court; or,
    (iv) Denial of employment authorization.
    (2) There is no requirement for USCIS to send a notice to an 
applicant that he or she failed to appear for his or her asylum 
interview or biometrics services appointment prior to issuing a 
decision on the application. Any rescheduling request for the asylum 
interview that has not yet been fulfilled on the date the application 
for employment authorization is adjudicated under 8 CFR 274a.12(c)(8) 
will be treated as an applicant-caused delay for purposes of 8 CFR 
208.7.
    (b) Rescheduling missed appointments. USCIS, in its sole 
discretion, may excuse the failure to appear for an interview or 
biometrics services appointment and reschedule the missed appointment 
as follows:
    (1) Asylum Interview. If the applicant demonstrates that he or she 
was unable to make the appointment due to exceptional circumstances.
    (2) Biometrics services appointment. USCIS may reschedule the 
biometrics services appointment as provided in 8 CFR part 103.

[[Page 62424]]

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

0
7. The authority citation for part 274a is revised to read as follows:

    Authority:  8 U.S.C. 1101, 1103, 1105a, 1324a; 48 U.S.C. 1806; 8 
CFR part 2; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 
114-74, 129 Stat. 599.

0
8. Amend Sec.  274a.12 by adding the phrase ``, unless otherwise 
provided in this chapter'' at the end of the last sentence in paragraph 
(c) introductory text and revising paragraphs (c)(8) and (11).
    The revisions read as follows:


Sec.  274a.12   Classes of aliens authorized to accept employment.

* * * * *
    (c) * * *
    (8) An alien who has filed a complete application for asylum or 
withholding of deportation or removal pursuant to 8 CFR parts 103 and 
208, whose application has not been decided, and who is eligible to 
apply for employment authorization under 8 CFR 208.7 because the 365-
day period set forth in that section has expired. Employment 
authorization may be granted according to the provisions of 8 CFR 208.7 
of this chapter in increments to be determined by USCIS but not to 
exceed increments of two years.
* * * * *
    (11) Except as provided in paragraphs (b)(37) and (c)(34) of this 
section, 8 CFR 212.19(h)(4), and except for aliens paroled from custody 
after having established a credible fear or reasonable fear of 
persecution or torture under 8 CFR 208.30, an alien paroled into the 
United States temporarily for urgent humanitarian reasons or 
significant public benefit pursuant to section 212(d)(5) of the Act.
* * * * *
0
9. Amend Sec.  274a.13 by revising paragraphs (a)(1) and (2) and (d)(3) 
to read as follows:


Sec.  274a.13   Application for employment authorization.

    (a) * * *
    (1) Aliens seeking initial or renewed employment authorization 
under 8 CFR 274a.12(c) must apply on the form designated by USCIS with 
prescribed fee(s) and in accordance with the form instructions. The 
approval of applications filed under 8 CFR 274a.12(c) is within the 
discretion of USCIS. Where economic necessity has been identified as a 
factor, the alien must provide information regarding his or her assets, 
income, and expenses.
    (2) An initial employment authorization request for asylum 
applicants or for renewal or replacement of employment authorization 
submitted in relation to a pending claim for asylum, in accordance with 
8 CFR 208.7 and 8 CFR 274a.12(c)(8), must be filed on the form 
designated by USCIS in accordance with the form instructions with 
prescribed fee(s).
* * * * *
    (d) * * *
    (3) Termination. Employment authorization automatically extended 
pursuant to paragraph (d)(1) of this section will automatically 
terminate the earlier of up to 180 days after the expiration date of 
the Employment Authorization Document (Form I-766), or on the date 
USCIS denies the request for renewal. Employment authorization granted 
under 8 CFR 274a.12(c)(8) and automatically extended pursuant to 
paragraph (d)(1) of this section is further subject to the termination 
provisions of 8 CFR 208.7(b)(2).
* * * * *
0
 10. Amend Sec.  274a.14 by:
0
(a) Removing ``or'' at the end of paragraph (a)(1)(ii);
0
(b) Removing the period and adding in its place ``; or'' at the end of 
paragraph (a)(1)(iii); and
0
(c) Adding paragraph (a)(1)(iv).
    The addition reads as follows:


Sec.  274a.14   Termination of employment authorization.

    (a) * * *
    (1) * * *
    (iv) Automatic termination is provided elsewhere in this chapter.

Kevin K. McAleenan,
Acting Secretary.
[FR Doc. 2019-24293 Filed 11-13-19; 8:45 am]
 BILLING CODE 9111-97-P