The law governing asylum states that, "An applicant for asylum is not entitled to employment authorization, but such authorization may be provided under regulation by the Attorney General." Up until now, the regulations implementing this law allowed most asylum applicants to file for their Employment Authorization Document ("EAD") 150 days after their asylum application was received by the U.S. government. Now, DHS has proposed regulations to delay EADs for all new applicants and to block EADs for some people.

Probably the most significant proposed change would be to increase the wait time before an asylum applicant can file for an EAD--from 150 days after the asylum form is filed to 365 days (and then the applicant would have to wait a few more months while USCIS processes the EAD). The rationale proffered by the government for delaying the EAD is to deter aliens from filing "frivolous, fraudulent, or otherwise non-meritorious asylum applications to obtain employment authorization." DHS also wants to reduce incentives for aliens to enter the country illegally and to deliberately delay their cases in order to gain more time in the U.S. As with many recent changes to asylum procedures, there is little evidence that asylum seekers are coming here for work permits, or that most do not have a real fear of harm in their home countries. Also, there is already a significant waiting period to obtain an EAD, and of course further delaying the EAD will impact meritorious and non-meritorious applicants alike.

According to DHS, the length of this new waiting period is not arbitrary, rather, "The 365-day period was based on the average of the current processing times for asylum applications which can range anywhere from six months to 2 years, before there is an initial decision..."

Huh? So asylum applicants are being punished because the U.S. government--largely through mismanagement--has a slow asylum system? If the average wait time increases to 10 years, must asylum applicants wait a decade before they can file for their EADs. Maybe a better method to calculate the wait time is to figure out how long asylum applicants can survive without jobs. Will applicants starve to death in three weeks? Six months? A year? I suppose from DHS's perspective, if applicants are dropping dead, that will at least reduce the backlog.

Another significant change in the proposed rule is to deny an EAD to any applicant who files for asylum more than one year after arriving in the U.S. Unlike the 365-day rule, this proposal applies to all asylum applicants, not just to people who file after the rule goes into effect. And so if you filed for asylum after one year in the U.S., and you currently have an EAD, USCIS might refuse to renew it when the time comes. Such unlucky soles would only become eligible for an EAD if an Asylum Officer or an Immigration Judge "determines that an exception to the statutory requirement to file for asylum within one year applies." Of course, by the time that happens, the case will already be decided, and so the large majority of late filers will not get an EAD until--and unless--they win asylum.

A third important proposed change applies to people who entered or attempted to enter the United States unlawfully. Under the new regulation, such people would not be entitled to an EAD at all. This provision seems to apply prospectively, meaning that if you entered the country illegally and you already have an EAD, you should be able to renew it. Asylum seekers who arrived unlawfully (or who attempted to enter unlawfully) and who file after the rule goes into effect will not be eligible for an EAD.

Finally, asylum seekers with a criminal conviction that is an aggravated felony under immigration law, a felony under state law, a serious non-political crime overseas, or related to domestic violence, child abuse or neglect, or driving under the influence of alcohol or drugs, will be barred from obtaining an EAD. This rule applies even to people who already have an EAD, and so some asylum seekers with criminal convictions may be unable to renew their work permits. More disturbing to those who care about such things as due process of law, asylum applicants who have "unresolved domestic charges or arrests" for crimes involving domestic violence, child abuse or neglect, illegal drugs, and DUI can be refused an EAD unless USCIS determines that the EAD applicant is entitled to a favorable exercise of discretion. So much for innocent until proven guilty.

Another change in the rule, which will only affect a limited number of people, is that DHS proposes to eliminate recommended approvals in asylum cases. Applicants receive a recommended approval where they are deemed to qualify for asylum, but background checks are not yet complete. Once a person received a recommended approval, she becomes immediately eligible for an EAD, and so by eliminating recommended approvals, some applicants will have to wait longer for their EADs.

One significant change that is a bit buried in the new rule is that affirmative asylum applicants will now be required to submit all their evidence 14 days before their interview. The problem here is that over 330,000 people are waiting for interviews, and many of those people will have to supplement and update their applications before the interview. The Asylum Office usually only gives two or three weeks notice of an interview, and so if evidence is required 14 days early, there will be little or no time to submit that evidence after the interview is scheduled. This will force applicants to reschedule their interviews and will cause further chaos at the Asylum Offices. Also, this new rules seems utterly pointless, since most Asylum Officers do not have time to review documents until the day of the interview, or maybe a day or two before, at best. So like other parts of this new rule, the 14-day provision seems designed for one purpose only--to make it more difficult for asylum seekers to present their cases.

For the budget conscious, an interesting element of the proposed rule is the summary of its costs. According to DHS, the estimated maximum cost of the new rule to our nation's economy is $4.4 billion annually, and a loss of tax revenue to the federal government of up to $683 million per year. The regulation notes that if other workers can be found to fill the jobs currently held by asylum seekers, the loss would be less--as low as zero, if all lost jobs are filled. The idea that all the jobs held by asylum seekers would be filled by American workers seems dubious, especially given that our economy is currently close to full employment, and so this new regulation will likely have a significant negative impact on our nation's economy. This cost estimate only considers affirmative asylum applicants; not defensive applicants, and so the cost will likely be more than the estimate predicts.

There is also another cost, which DHS does not seem to consider here. If asylum seekers are not permitted to work, their overall economic situation will be worse (duh!), and so if they are ultimately granted asylum, they will be much further behind economically than if they had been able to work while they were waiting for their cases to be processed. I imagine that this economic handicap will remain long after an applicant's case is granted. Also, since an EAD allows asylum applicants to study at university, delaying or blocking the applicant's EAD will put them further behind in terms of their education, and cause universities to lose tuition fees.

So to sum up, what we have here are new regulations that will cost our government money, and which will harm many asylum seekers and reduce their ability to contribute to our country. Rather than assist asylum seekers who have come to us for help, the Trump Administration is so intent on deterring them, that it is willing to harm all of us in the process.

Originally posted on the Asylumist: