Federal Register, Volume 85 Issue 120 (Monday, June 22, 2020)

[Federal Register Volume 85, Number 120 (Monday, June 22, 2020)]
[Rules and Regulations]
[Pages 37502-37546]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-13391]

[[Page 37501]]

Vol. 85

Monday,

No. 120

June 22, 2020

Part II

Department of Homeland Security

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8 CFR Part 208

Removal of 30-Day Processing Provision for Asylum Applicant-Related
Form I-765 Employment Authorization Applications; Final Rule

Federal Register / Vol. 85, No. 120 / Monday, June 22, 2020 / Rules
and Regulations

[[Page 37502]]

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 208

[CIS No. 2617-18; DHS Docket No. USCIS-2018-0001]
RIN 1615-AC19

Removal of 30-Day Processing Provision for Asylum Applicant-
Related Form I-765 Employment Authorization Applications

AGENCY: U.S. Citizenship and Immigration Services, DHS.

ACTION: Final rule.

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SUMMARY: This final rule removes a Department of Homeland Security
(DHS) regulatory provision stating that U.S. Citizenship and
Immigration Services (USCIS) has 30 days from the date an asylum
applicant files the initial Form I-765, Application for Employment
Authorization, (EAD application) to grant or deny that initial
employment authorization application. This rule also removes the
provision requiring that the application for renewal must be received
by USCIS 90 days prior to the expiration of the employment
authorization.

DATES: This final rule is effective August 21, 2020.

FOR FURTHER INFORMATION CONTACT: Daniel Kane, Branch Chief, Service
Center Operations, U.S. Citizenship and Immigration Services (USCIS),
DHS, 20 Massachusetts NW, Washington, DC 20529-2140; telephone: 202-
272-8377.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary
A. Purpose of the Regulatory Action
B. Legal Authority
C. Summary of the Final Rule Provisions
D. Summary of Costs and Benefits
E. Effective Date
F. Implementation
II. Background and Discussion
A. Elimination of 30-Day Processing Timeframe
B. Removal of the 90-Day Filing Requirement
C. Corresponding U.S. Department of Justice (DOJ) Regulations
III. Response to Public Comments on the Proposed Rule
A. General Feedback on the NPRM
1. General Support for the NPRM
2. General Opposition to the NPRM
B. DHS Statutory Authority and Legal Issues
1. DHS Statutory Authority
2. Rosario v. USCIS Court Order
3. Other Comments on Statutory Authority or Legal Issues
C. Removal of 30-Day Processing Timeframe
1. DHS Rationale and Need for the Rule
D. Removal of 90-Day Filing Requirement
1. Necessity of Rule and DHS Rationale
E. Statutory and Regulatory Requirements
1. Costs and Benefits (E.O. 12866 and 13563)
a. Costs Associated With Hiring Additional Immigration Officers
b. Population and Effect of Rule on Processing Times
c. Wage Bases for Labor Earnings
d. Lost Wages and Benefits
e. Impact on Support Network
f. Costs Related to Socioeconomic Factors and Impacts
g. Impacts to Companies and Employers
h. Tax Impacts
i. Small Entity Impacts
j. Benefits
2. Other Statutory and Regulatory Requirements
F. Out of Scope
1. Comments on the Broader Asylum EAD NPRM
2. Other Out of Scope Comments
IV. 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 the Final Rule
3. Population
4. Transfers, Costs, and Benefits of the Rule
a. Transfers and Cost
b. Benefits
c. Labor Market Overview
d. Alternatives
B. Regulatory Flexibility Act
C. Congressional Review Act
D. Unfunded Mandates Reform Act of 1995
E. Executive Order 13132 (Federalism)
F. Executive Order 12988 (Civil Justice Reform)
G. Paperwork Reduction Act
H. Family Assessment
I. Executive Order 13175
J. National Environmental Policy Act (NEPA)
K. National Technology Transfer and Advancement Act
L. Executive Order 12630
M. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
N. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
O. Signature

Table of Abbreviations

BCU Background Check Unit
CFDO Center Fraud Detection Operations
CFR Code of Federal Regulations
DHS Department of Homeland Security
EAD Employment Authorization Document
HSA Homeland Security Act of 2002
INA Immigration and Nationality Act
NPR Notice of Proposed Rulemaking
USCIS U.S. Citizenship and Immigration Services

I. Executive Summary

A. Purpose of the Regulatory Action

On September 9, 2019, DHS published a notice of proposed rulemaking
in which it laid out its intention to eliminate the regulation
articulating a 30-day processing timeframe for USCIS to adjudicate
initial Applications for Employment Authorization (Forms I-765 or EAD
applications) for asylum applicants. This change was proposed to (1)
ensure USCIS has sufficient time to receive, screen, and process
applications for an initial grant of employment authorization based on
a pending asylum application, and to also (2) reduce opportunities for
fraud and protect the security-related processes undertaken for each
EAD application.\1\ DHS also proposed to remove the provision requiring
that the application for renewal must be received by USCIS 90 days
prior to the expiration of their employment authorization. This change
was proposed to align existing regulatory text with DHS policies
implemented under the Retention of EB-1, EB-2, and EB-3 Immigrant
Workers and Program Improvements Affecting High-Skilled Nonimmigrant
Workers final rule, 82 FR 82398, 82457 (2017 AC21 Rule), which became
effective January 17, 2017. DHS provided its analysis and
justifications and invited public comment. Following the review and
analysis of public comments, DHS is adopting its proposed regulation in
all material respects,\2\ and incorporates by reference the reasoning,
and data in the proposed rule, except to the extent indicated

[[Page 37503]]

below. DHS also provides more recent data below, where available.
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\1\ As noted in the proposed rule, prior to the Rosario v.
USCIS, 365 F. Supp. 3d 1156 (W.D. Wash. 2018), court order in fiscal
year 2017, the adjudication processing times for these employment
authorization applications exceeded the regulatory set timeframe of
30 days more than half the time. In response to the Rosario v. USCIS
litigation and to comply with the court order, USCIS dedicated as
many resources as practicable to these adjudications, but continues
to face a historic asylum application backlog, which in turn
increases the numbers of applicants eligible for pending asylum
EADs. However, USCIS does not want to continue this reallocation of
resources as a long-term solution because it removes resources from
other competing work priorities in other product lines and adds
delays to other time-sensitive adjudication timeframes, and thus is
finalizing this rule.
\2\ DHS has made one technical correction to the proposed rule.
DHS had proposed to replace old references to ``the Service'' in 8
CFR 208.7(a)(1) and (c)(3) with references to USCIS. But in context,
the reference to ``the Service'' in 8 CFR 208.7(c)(3) is best read
to refer to functions currently performed by U.S. Immigration and
Customs Enforcement, a different component of DHS. The final rule
therefore replaces the latter reference to ``the Service'' with a
reference to ``DHS'' more broadly, rather than just USCIS.
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B. Legal Authority

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 final 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 immigration and
nationality laws and to establish such regulations as he deems
necessary for carrying out such authority. See also 6 U.S.C.
271(a)(3)(A), (b). Further authority for the regulatory amendment in
the final rule is found in section 208(d)(2) of the INA, 8 U.S.C.
1158(d)(2), which states that an applicant for asylum is not entitled
to employment authorization, and may not be granted asylum application-
based employment authorization prior to 180 days after filing of the
application for asylum, but otherwise authorizes the Secretary to
prescribe by regulation the terms and conditions of employment
authorization for asylum applicants.

C. Summary of the Final Rule Provisions

DHS considered the public comments received and this final rule
adopts the regulatory text proposed in the Notice of Proposed
Rulemaking (NPRM) published in the Federal Register on September 9,
2019, in all material respects. See Removal of 30-Day Processing
Provision for Asylum Applicant-Related Form I-765 Employment
Authorization Applications, Proposed Rule, 84 FR 47148.
As a consequence, this final rule makes the following major
revisions to the application for employment authorization for asylum
seekers program regulations:
1. Eliminates the 30-day adjudication requirement for initial
filings; and
2. eliminates the requirement that applications to renew employment
authorization must be received by USCIS 90 days prior to the expiration
of the applicant's employment authorization.

D. Summary of Costs and Benefits

DHS notes that the estimates from the NPRM regarding unemployment,
number of asylum applicants per year, and USCIS processing are not
currently applicable as COVID-19 has had a dramatic impact on all
three. DHS offers this analysis as a glimpse of the potential impacts
of the rule, but the analysis relies on assumptions related to a pre-
COVID economy. While future economic conditions are currently too
difficult to predict with any certainty, DHS notes that a higher
unemployment rate may result in lower costs of this rule as replacing
pending asylum applicant workers would most likely be easier to do.
Consequently, as unemployment is high, this rule is less likely to
result in a loss of productivity on behalf of companies unable to
replace forgone labor.
DHS is removing the requirement to adjudicate initial EAD
applications for pending asylum applicants within 30 days. In FY 2017,
prior to the Rosario v. USCIS court order, 365 F. Supp. 3d 1156 (W.D.
Wash. 2018), the adjudication processing times for initial Form I-765
under the Pending Asylum Applicant category exceeded the regulatory-set
timeframe of 30 days more than half the time. However, USCIS
adjudicated approximately 78 percent of applications within 60 days. In
response to the Rosario v. USCIS litigation and to comply with the
Rosario court order, USCIS has dedicated as many resources as
practicable to these adjudications, but continues to face a historic
asylum application backlog, which in turn increases the numbers of
applicants eligible for pending asylum EADs. However, USCIS finds this
reallocation of resources unsustainable as a long-term solution because
it removes resources from competing work priorities in other product
lines and adds delays to other time-sensitive adjudication timeframes.
By eliminating the 30-day adjudicative timeframe, USCIS is better able
to prioritize status-granting workloads based on agency and department
priorities. USCIS has not estimated the costs of hiring additional
officers and therefore has not estimated the costs that might be
avoided if the major revisions in this final rule are not implemented.
Hiring more officers would not immediately and in all cases shorten
adjudication timeframes because: (1) Additional time would be required
to recruit, onboard and train new employees; and, (2) for certain
applications, additional time is needed to fully vet applicants,
regardless of staffing levels. Further, simply hiring more officers is
not always feasible due to budgetary constraints and the fact that
USCIS conducts notice and comment rulemaking to raise fees and increase
revenue for such hiring actions. There is currently no fee for asylum
applications or the corresponding initial EAD applications,\3\ and the
cost to the agency for adjudication is covered by fees paid by other
benefit requesters. As a primary goal, USCIS seeks to adequately vet
applicants and adjudicate applications as quickly and efficiently as
possible. However, this final rule may delay the ability to work for
some initial applicants whose EAD processing is delayed beyond the 30-
day regulatory timeframe.
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\3\ On April 29, 2019, President Trump directed DHS to propose
regulations that would set a fee for an asylum application not to
exceed the costs of adjudicating the application, as authorized by
section 208(d)(3) of the INA (8 U.S.C. 1158(d)(3)) and other
applicable statutes, and would set a fee for an initial application
for employment authorization for the period an asylum claim is
pending. See Presidential Memorandum for the Attorney General and
Secretary of Homeland Security on Additional Measures to Enhance
Border Security and Restore Integrity to Our Immigration System
(Apr. 29, 2019), available at https://www.whitehouse.gov/presidential-actions/presidential-memorandum-additional-measures-enhance-border-security-restore-integrity-immigration-system/ (last
visited June 26, 2019). The implementation of the President's
directive would take place via a separate rulemaking (known as the
fee rule, through which USCIS analyzes adjudicative and operational
costs biannually and sets fees, see 84 FR 6228- (Nov. 14, 2019)
(proposed rule), but it is uncertain whether such a revised fee
structure would reduce the overall resource burden associated with
the 30-day adjudication timeframe.
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The impacts of this rule are measured against a baseline. While we
have added some more recent data and information, pursuant to public
comments, the costs are benchmarked to FY 2017, consistent with the
NPRM. This baseline reflects the best assessment of the way the world
would look absent this action. For this rulemaking, USCIS assumes that
in the absence of this final rule the baseline amount of time that
USCIS would take to adjudicate would be 30 days. USCIS also assumes
that after this final rule becomes effective, adjudications will align
with DHS processing times achieved in FY 2017 (before the Rosario v.
USCIS court order). This is our best estimate of what will occur after
this rule becomes effective. USCIS believes the FY 2017 timeframes are
sustainable and expects to meet these timeframes following the
effective date of this rule. Therefore, USCIS analyzed the impacts of
this rule by comparing the costs and benefits of adjudicating initial
EAD applications for pending asylum applications within 30 days
compared to the actual time it took to adjudicate these EAD
applications in FY 2017.
USCIS notes that in FY 2018, 80.3 percent of applications were
processed within 30 days and 97.5 percent were processed within 60
days. In FY 2019, the figures were 96.9 percent and 99.2 percent,
respectively. In the analysis of impacts of this rule, USCIS assumed
100

[[Page 37504]]

percent of adjudications happened within 30 days.\4\ However, because
actual adjudications in FYs 2018 and 2019 within the 30-day timeframe
are slightly less than the 100 percent analyzed, USCIS has over-
estimated the impacts of this rule with respect to this variable when
less than 100 percent of adjudications happen within 30 days. It is
noted that the reliance on the 100 percent rate slightly overstates the
costs.
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\4\ The information regarding the processing of these
applications was provided by USCIS Office of Performance and Quality
(OPQ).
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The impacts of this rule include both potential distributional
effects (which are transfers) and costs.\5\ The potential
distributional impacts fall on the asylum applicants who may be delayed
in entering the U.S. labor force. The potential distributional impacts
(transfers) would be in the form of lost opportunity to receive
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, possibly in the form of additional
work hours or overtime pay. A portion of the impacts of this rule may
also be borne by companies that would have hired the asylum applicants
had they been in the labor market earlier but were unable to find
available workers. These companies would incur a cost, as they may be
losing the productivity and potential profits the asylum applicant may
have provided had the asylum applicant been in the labor force
earlier.\6\
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\5\ 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.
\6\ The analysis accounts for delayed entry into the labor
force, and does not account for the potential circumstance under
which this rule may completely foreclose an alien's entry into the
labor force. Such a possible circumstance could occur if USCIS
ultimately denies an EAD application that was pending past 30 days
due to this rule, solely because the underlying asylum application
had been denied during the extended pendency of the EAD application.
In such a scenario, there would be additional costs and transfer
effects due to this rule. Such costs and transfer effects are not
accounted for below. Similarly, the rule does not estimate avoided
turnover costs to the employer associated with such a scenario.
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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. 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. 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). USCIS acknowledges that there may be additional
opportunity costs to employers such as additional search costs.
However, if companies cannot find a reasonable substitute for the labor
an asylum applicant 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 rule--either as distributional impacts
(transfers) or as a proxy for businesses' cost for lost productivity.
It does not include additional costs to businesses for lost profits and
opportunity costs or the distributional impacts for those in an
applicant's support network. The lost compensation to asylum applicants
could range from $255.88 million to $774.76 million annually depending
on the wages the asylum applicant would have earned. The 10-year total
discounted lost compensation to asylum applicants at 3 percent could
range from $2.183 billion to $6.609 billion and at 7 percent could
range from $1.797 billion to $5.442 billion (years 2020-2029).
USCIS recognizes that the impacts of this final rule could be
overstated if the provisions of a separate NPRM that DHS published in
November 2019 (``broader asylum EAD NPRM'') are finalized as proposed.
See Asylum Application, Interview, and Employment Authorization for
Applicants, Proposed Rule, 84 FR 62374 (Nov. 14, 2019). Specifically,
the broader asylum EAD NPRM would limit or delay eligibility for
employment authorization for certain asylum applicants.\7\ Accordingly,
if the population of aliens is less than estimated as a result of the
broader asylum EAD rule, the estimated impacts of this rule could be
overstated because the population affected may be lower than estimated
in this rule.
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\7\ In the broader asylum EAD NPRM, DHS proposed to modify its
current regulations governing asylum applications, interviews, and
eligibility for employment authorization based on a pending asylum
application. That NPRM was intended to implement a Presidential
directive related to employment authorization for asylum applicants.
On April 29, 2019, President Trump directed DHS to propose
regulations that would bar aliens who have entered or attempted to
enter the United States unlawfully from receiving employment
authorization before any applicable application for relief or
protection from removal has been granted, and to ensure immediate
revocation of employment authorization for aliens who are denied
asylum or become subject to a final order of removal. See
Presidential Memorandum for the Attorney General and Secretary of
Homeland Security on Additional Measures to Enhance Border Security
and Restore Integrity to Our Immigration System (Apr. 29, 2019),
available at https://www.whitehouse.gov/presidential-actions/presidential-memorandum-additional-measures-enhance-border-security-restore-integrity-immigration-system/ (last visited June 26, 2019).
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In instances where a company cannot hire replacement labor for the
position the asylum applicant would have filled, USCIS acknowledges
that such delays may result in tax losses to the government. It is
difficult to quantify income tax losses because individual tax
situations vary widely \8\ but USCIS estimates the potential loss to
other 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).\9\ With both the employee and employer not
paying their respective portion of Medicare and social security taxes,
the total estimated tax loss for Medicare and social security is 15.3
percent.\10\ Lost wages ranging from $255.88 million to $774.76 million
would result in employment tax losses to the government ranging from
$39.15 million to $118.54 million.\11\ Again, depending on the
circumstances of the employee, there could be additional federal income
tax losses not estimated here. There may also be state and local income
tax losses that would vary according to the jurisdiction.
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\8\ See More than 44 percent of workers 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.
\9\ 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.
\10\ 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.
\11\ Calculations: Lower bound lost wages $255.88 million x 15.3
percent estimated tax rate = $39.15 million.
Upper bound lost wages $774.76 million x 15.3 percent estimated
tax rate = $118.54 million.
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This rule will possibly result in reduced opportunity costs to the
federal government. Since the Rosario court order compelled USCIS to
comply with the 30-day provision in FY 2018, USCIS has redistributed
its adjudication resources to work up to full compliance. By removing
the 30-day timeframe, these redistributed resources can be reallocated,
potentially reducing delays in processing of status-granting benefit
requests, and avoiding costs associated with hiring additional
employees. USCIS has not estimated these avoided

[[Page 37505]]

costs. Additionally, USCIS does not anticipate that removing the
separate 90-day EAD filing requirement would result in any costs to the
federal government.
This rule will benefit USCIS by allowing it to operate under long-
term, sustainable case processing times for initial EAD applications
for pending asylum applicants, to allow sufficient time to address
national security and fraud concerns, and to maintain technological
advances in document production and identity verification. Applicants
would rely on up-to-date processing times, which provide accurate
expectations of adjudication times.
The technical change removing the 90-day filing requirement is
expected to reduce confusion regarding EAD renewal requirements for
pending asylum applicants and ensure the regulatory text reflects
current DHS policy and regulations under DHS's final 2017 AC21
Rule.\12\
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\12\ In the 2017 AC21 final rule, 81 FR 82398, USCIS amended 8
CFR 274a.13 to allow for the automatic extension of existing, valid
EADs for up to 180 days for renewal applicants falling within
certain EAD categories as described in the regulation and designated
on the USCIS website. See 8 CFR 274a.13(d). Among those categories
is asylum applicants. To benefit from the automatic extension, an
applicant falling within an eligible category (1) must properly file
his or her renewal request for employment authorization before its
expiration date; (2) must request renewal based on the same
employment authorization category under which the expiring EAD was
granted; and (3) will continue to be authorized for employment based
on his or her status, even after the EAD expires, if the applicant
is applying for renewal under a category that does not first require
USCIS to adjudicate an underlying application, petition, or request.
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Table 1 provides a detailed summary of the regulatory changes and
the expected impacts of this final rule.

Table 1--Summary of Provisions and Impacts
----------------------------------------------------------------------------------------------------------------
Expected costs and
Current provision Change to provision transfers from changed Expected benefits from
provision changed provision
----------------------------------------------------------------------------------------------------------------
USCIS has a 30-day initial EAD USCIS is eliminating Quantitative: This Quantitative: Not
adjudication timeframe for the provisions for provision could delay the estimated.
applicants who have pending asylum the 30-day ability of some initial
applications. adjudication applicants to work. A
timeframe and portion of the impacts of
issuance of initial the rule would be the lost
EADs for pending compensation transferred
asylum applicants. from asylum applicants to
others currently in the
workforce, possibly in the
form of additional work
hours or overtime pay. A
portion of the impacts of
the rule would be lost
productivity costs to
companies that would have
hired asylum applicants
had they been in the labor
market, but who were
unable to find available
workers. USCIS uses the
lost compensation to
asylum applicants as a
measure of these
distributional impacts
(transfers) and as a proxy
for businesses' cost for
lost productivity. The
lost compensation due to
processing delays could
range from $255.88 million
to $774.76 million
annually. The total ten-
year discounted lost
compensation for years
2020-2029 averages $4.396
billion and $3.619 billion
at discount rates of 3 and
7 percent, respectively.
USCIS does not know the
portion of overall impacts
of this rule that are
transfers or costs. Lost
wages ranging from $255.88
million to $774.76 million
would result in employment
tax losses to the
government ranging from
$39.15 million to $118.54
million annually.
Qualitative: In cases where Qualitative: DHS will
companies cannot find be able to operate
reasonable substitutes for under long-term
the labor the asylum sustainable case
applicants would have processing times for
provided, affected initial EAD
companies would also lose applications for
profits from the lost pending asylum
productivity. In all applicants, to allow
cases, companies would sufficient time to
incur opportunity costs by address national
having to choose the next security and fraud
best alternative to concerns, and to
immediately filling the maintain
job the pending asylum technological
applicant would have advances in document
filled. There may be production and
additional opportunity identity verification
costs to employers such as without having to add
search costs. There may any resources.
also be additional
distributional impacts for
those in an applicant's
support network beyond a
minimum of 180 days--if
applicants are unable to
work legally, they may
need to rely on resources
from family members,
friends, non-profits, or
government entities for
support.
DHS notes that the This rule is expected
estimates from the NPRM to result in reduced
regarding unemployment, opportunity costs to
number of asylum the Federal
applicants per year, and Government. By
USCIS processing are not removing the 30-day
currently applicable as timeframe, USCIS will
COVID-19 has had a be able to reallocate
dramatic impact on all the resources it
three. DHS offers this redistributed to
analysis as a glimpse of comply with the 30-
the potential impacts of day provision,
the rule, but the analysis potentially reducing
relies on assumptions delays in processing
related to a pre-COVID of other applications
economy. While future and avoiding costs
economic conditions are associated with
currently too difficult to hiring additional
predict with any employees.
certainty, DHS notes that
a higher unemployment rate
may result in lower costs
of this rule as replacing
pending asylum applicant
workers would most likely
be easier to do.
Consequently, as
unemployment is high, this
rule is less likely to
result in a loss of
productivity on behalf of
companies unable to
replace forgone labor.
Applicants can currently submit This rule removes the Quantitative: None......... Quantitative: None.
90-day
a renewal EAD application 90 days submission Qualitative: None.......... Qualitative:
before the expiration of their requirement for Applicants--
current EAD. renewal EAD Reduces
applications. confusion regarding
EAD renewal
requirements. Some
confusion may
nonetheless remain if
applicants consult
outdated versions of
regulations or
inapplicable DOJ
regulations.

[[Page 37506]]

DHS/USCIS--
The DHS
regulations are being
updated to match
those of other EAD
categories.
----------------------------------------------------------------------------------------------------------------

As previously discussed, USCIS does not know the portion of overall
impacts of this rule that are transfers or costs, but estimates that
the maximum monetized impact of this rule from lost compensation is
$774.76 million annually. If all companies are able to easily find
reasonable labor substitutes for all of the positions the asylum
applicants would have filled, they will bear little or no costs, so the
maximum of $774.76 million 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 any reasonable labor
substitutes for the positions the asylum applicants would have filled,
then $774.76 million is the estimated maximum monetized cost of the
rule 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 $118.54 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
this rule and are summarized in Table 2 below.

Table 2--Summary of Range of Monetized Annual Impacts
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Scenario: No replacement labor Scenario: All asylum
found for asylum applicants applicants replaced with other Primary (half
Category Description -------------------------------- workers of the highest
-------------------------------- high for each
Low wage High wage Low wage High wage row)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cost...................................... Lost compensation used as $255.88 $774.76 $0.00 $0.00 $387.38
proxy for lost productivity
to companies.
Transfer.................................. Compensation transferred 0.00 0.00 255.88 774.76 387.38
from asylum applicants to
other workers.
Transfer.................................. Lost employment taxes paid 39.15 118.54 0.00 0.00 59.27
to the Federal Government.
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As required by OMB Circular A-4, Table 3 presents the prepared A-4
accounting statement showing the costs and transfers associated with
this final regulation. For the purposes of the A-4 accounting statement
below, USCIS uses the mid-point as the primary estimate for both costs
and transfers because the total monetized impact of the rule from lost
compensation cannot exceed $774.76 million and as described, USCIS is
unable to apportion the impacts between costs and transfers. Likewise,
USCIS uses a mid-point for the reduction in employment tax transfers
from companies and employees to the federal government when companies
are unable to easily find replacement workers. USCIS notes that there
may be some un-monetized costs such as additional opportunity costs to
employers that would not be captured in these monetized estimates.

Table 3--OMB A-4 Accounting Statement
[$ millions, 2017]
[Period of analysis: 2020-2029]
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 37507]]

Annualized monetized costs (discount (7%) $387.38 $0 $774.76 RIA.
rate in parenthesis). (3%) $387.38 $0 $774.76 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 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 additional search costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
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%) $387.38 $0 $774.76 RIA.
Compensation. (3%) $387.38 $0 $774.76
----------------------------------------------------------------
From whom to whom?...................... From asylum applicants to workers in the U.S. labor force or RIA.
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
----------------------------------------------------------------
Annualized monetized transfers: Taxes... (7%) $59.27 $0 $118.54 RIA.
(3%) $59.27 $0 $118.54
----------------------------------------------------------------
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
--------------------------------------------------------------------------------------------------------------------------------------------------------
Category Effects Source citation
(RIA, preamble, etc.)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Effects on state, local, and/or tribal None; no significant impacts to national labor force or to the RIA.
governments. labor force of individual states is expected. Possible loss of
tax revenue
Effects on small businesses................. None RFA.
Effects on wages............................ None RIA.
Effects on growth........................... None RIA.
--------------------------------------------------------------------------------------------------------------------------------------------------------

E. Effective Date

This final rule will be effective on August 21, 2020, 60 days from
the date of publication in the Federal Register. DHS has determined
that this 60-day period is reasonable as it does not impose new filing
burdens on asylum seekers requesting initial employment authorization
and simplifies the requirements for asylum seekers requesting to renew
employment authorization.

F. Implementation

The changes in this rule will apply to adjudication of initial
applications for work authorization filed on or after the effective
date of the rule by those with pending asylum applications and renewal
applicants filing on or after the effective date. As noted in the
preamble to the proposed rule, Rosario class members who have filed
their initial EAD applications prior to the effective date of the rule
will be grandfathered into the 30-day adjudication timeframe. See 84 FR
at 47153. DHS has determined that this manner of implementation best
balances operational considerations with fairness to class members.

II. Background and Discussion

A. Elimination of 30-Day Processing Timeframe

Processing of Applications for Employment Authorization Documents
(EADs)
Pursuant to 8 CFR 208.7, 274a.12(c)(8), and 274a.13(a)(2), pending
asylum applicants may request an EAD by filing an EAD application using
Form I-765, Application for Employment Authorization. Under 8 CFR
208.7(a)(1) prior to this final rule, USCIS' adjudicatory timeframe for
initial employment authorization requests under the (c)(8) category was
30 days. The 30-day timeframe in 8 CFR 208.7(a)(1) was established more
than 20 years ago,\13\ when the former Immigration and Naturalization
Service (INS) adjudicated EAD applications at local INS offices. The
adjudication process and vetting requirements have changed
substantially since that time. EAD applications are now adjudicated at
USCIS service centers. As discussed in the proposed rule and in
response to comments below, DHS believes that the 30-day timeframe is
outdated, does not account for the current volume of applications, and
no longer reflects

[[Page 37508]]

current operational realities.\14\ Specifically, in the time since the
previous rule was enacted, asylum applications filed with USCIS have
reached historic levels, peaking most recently at 142,760 in FY 2017.
This increase in application receipts, along with the significant and
longstanding backlog at USCIS of affirmative asylum applications
(``asylum backlog'' or ``affirmative asylum backlog''), has contributed
to an increase in receipts of initial EAD applications for pending
asylum applicants that has surpassed available USCIS resources. By
eliminating the 30-day provision, DHS seeks to maintain realistic case
processing times for initial EAD applications filed by pending asylum
applicants, to address national security and fraud concerns, and to
maintain technological advances in document production and identity
verification that USCIS must fulfill as a part of its core mission
within DHS. This rulemaking does not change any requirements or
eligibility for applying for or being granted asylum or employment
authorization. Rather, it reflects the operational changes necessary
due to increased employment authorization application volumes based on
an underlying application for asylum.
---------------------------------------------------------------------------

\13\ See Rules and Procedures for Adjudication of Applications
for Asylum or Withholding of Deportation and for Employment
Authorization, 59 FR 62284 (Dec. 5, 1994); Inspection and Expedited
Removal of Aliens; Detention and Removal of Aliens; Conduct of
Removal Proceedings; Asylum Procedures, 62 FR 10312, 10337 (Mar. 6,
1997).
\14\ DHS continues to recognize the regulatory history for
originally promulgating this provision, and discusses this
extensively in the comment responses.
---------------------------------------------------------------------------

Growth of Receipts and Backlog
The growth of asylum application receipts by USCIS, along with the
growing asylum backlog, has contributed to an increase in EAD
applications from pending asylum applicants that has surpassed
available Service Center Operations resources. As of February 2020, the
affirmative asylum caseload stood at approximately 339,000 applications
\15\ and it had been growing for several years. Credible fear screening
for aliens apprehended at or near the U.S. border, see 8 CFR 208.30,
increased to over 94,000 in fiscal year (FY) 2016 from 36,000 in FY
2013. Affirmative asylum applications increased to over 100,000 in FY
2016 for the first time in 20 years.\16\ The USCIS Asylum Division
received 44,453 affirmative asylum applications in FY 2013, 56,912 in
FY 2014, 84,236 in FY 2015, 115,888 in FY 2016, 142,760 in FY 2017,
106,041 in FY 2018, and 96,861 in FY 2019.\17\ While receipts have
dipped slightly in the last two fiscal years, prior to that there was a
221.15 percent increase in annual affirmative asylum receipts over the
span of 5 years that directly contributed to the increase in (c)(8) EAD
receipts. USCIS received 41,021 initial EAD applications from aliens
with pending asylum applications in FY 2013, 62,169 in FY 2014, 106,030
in FY 2015, 169,970 in FY 2016, 261,782 in FY 2017, 262,965 in FY 2018,
and 216,038 in FY 2019. USCIS also received 37,861 renewal EAD
applications from aliens with pending asylum applications in FY 2013,
47,103 in FY 2014, 72,559 in FY 2015, 128,610 in FY 2016, 212,255 in FY
2017, 62,026 in FY 2018 and 335,188 in FY 2019. In FY 2019, USCIS
received a total of 556,996 applications (which include initial and
renewals of 551,226 plus 5,770 replacements, the latter of which are
immaterial to this rule) for Form I-765 from pending asylum applicants,
with less than half as initial applications (216,038 or 38.8 percent).
There were 335,188 renewal applications (60.2 percent) in FY 2019.
---------------------------------------------------------------------------

\15\ An affirmative asylum application filed by a principal
asylum applicant may include a dependent spouse and children, who
may also file their own EAD applications based on the pending asylum
application. An affirmative asylum application is one that is filed
with USCIS and not in removal proceedings before the Executive
Office for Immigration Review (EOIR).
\16\ The USCIS Refugee, Asylum, and International Operations
Parole System provided this data on March 15, 2018.
\17\ These numbers only address the affirmative asylum
applications that fall under the jurisdiction of USCIS' Asylum
Division. Defensive asylum applicants, who file their asylum
applications with the Department of Justice's Executive Office for
Immigration Review (EOIR) are also eligible for (c)(8) EADs. There
is an ongoing backlog of pending defensive asylum cases at EOIR,
which has approximately 650,000 cases pending. See Memorandum from
Jeff Sessions, Attorney General, Renewing Our Commitment to the
Timely and Efficient Adjudication of Immigration Cases to Serve the
National Interest (Dec. 5, 2017). The defensive asylum backlog at
EOIR also contributes to an increase in both initial and renewal
(c)(8) EAD applications.
---------------------------------------------------------------------------

The increase in both initial and renewal EAD applications coupled
with the growth in the number of asylum cases filed in recent years has
grossly outpaced Service Center Operations resources, specifically
because USCIS has had to reallocate resources from other product lines
to adjudicate these EAD applications.\18\
---------------------------------------------------------------------------

\18\ In response to the growing backlog and court-ordered
implementation of the 30-day adjudication timeline in Rosario v.
USCIS, Rosario v. USCIS, 365 F. Supp. 3d 1156 (W.D. Wash. 2018),
Service Center Operations re-allocated available officer resources
to meet the 30-day processing time for initial EAD applications,
causing a strain across other Service Center Operations product
lines.
---------------------------------------------------------------------------

Changes in Intake and Document Production
Additionally, at the time the 30-day timeframe was established,
EADs, which were formerly known as Forms I-688B, were produced by local
offices that were equipped with stand-alone machines for such purposes.
While decentralized card production resulted in immediate and
customized adjudications for the public, the cards produced did not
contain state-of-the-art security features, and they were susceptible
to tampering and counterfeiting. Such deficiencies became increasingly
apparent as the United States faced new and increasing threats to
national security and public safety.
In response to these concerns, the former INS and DHS made
considerable efforts to upgrade application procedures and leverage
technology in order to enhance integrity, security, and efficiency in
all aspects of the immigration process and by 2006, DHS fully
implemented these centralization efforts.\19\
---------------------------------------------------------------------------

\19\ See USCIS Memorandum from Michael Aytes, Elimination of
Form I-688B, Employment Authorization Card (Aug. 18, 2006). In
January 1997, the former INS began issuing new, more secure EADs
from a centralized location, and assigned a new form number (I-766)
to distinguish it from the less secure, locally produced EADs (Forms
I-688B). DHS stopped issuing Form I-688B EADs from local offices
altogether in 2006.
---------------------------------------------------------------------------

In general, DHS now requires applicants to file Applications for
Employment Authorization at a USCIS Lockbox,\20\ which is a Post Office
box used to accelerate the processing of applications by electronically
capturing data and receiving and depositing fees.\21\ If DHS ultimately
approves the application, a card order is sent to a card production
facility, where a tamper-resistant card reflecting the specific
employment authorized category is produced and then mailed to the
applicant. While the 30-day timeframe may have made sense when local
offices processed applications and produced the cards, DHS believes
that the intervening changes discussed above now mean that a 30-day
timeframe is not reflective of current processes.
---------------------------------------------------------------------------

\20\ Asylum applicants, however, make their initial request for
employment authorization directly on the Application for Asylum and
Withholding of Removal, Form I-589, and need not file a separate
Application for Employment Authorization following a grant of
asylum. If they are requesting employment authorization based on
their pending asylum application, they must file a separate request
for employment authorization on Form I-765.
\21\ USCIS website at https://www.uscis.gov/about-us/directorates-and-program-offices/lockbox-intake/lockbox-intake-processing-tip-sheet (last viewed March 2, 2020).
---------------------------------------------------------------------------

Fraud, Criminality, and National Security Considerations
DHS has been unable to meet the 30-day processing timeframe in
certain cases due to changes to the agency's vetting procedures and
increased

[[Page 37509]]

background checks, which resulted from the government's response to
September 11, 2001, terror attacks (``9/11''). Specifically, the
Immigration and Naturalization Service (INS), followed by USCIS, made
multiple changes to enhance the coverage of security checks, detect
applicants who pose risks to national security and public safety, deter
benefits fraud, and ensure that benefits are granted only to eligible
applicants, in response to 9/11.
These changes included the creation of the Application Support
Centers to collect applicant fingerprints, interagency systems checks
for all applications and FBI name check screening, and the creation of
USCIS's Office of Fraud Detection and National Security (FDNS) to
provide centralized support and policy guidance for security checks and
anti-fraud operations.\22\ In August 2004, the Homeland Security
Presidential Directive (HSPD) 11, Comprehensive Terrorist-Related
Screening Procedures,\23\ directed DHS to:
---------------------------------------------------------------------------

\22\ In 2010, FDNS was promoted to a Directorate within USCIS's
organizational structure, which elevated its profile and brought
operational improvements to its important work. See USCIS, Fraud
Detection and National Security Directorate, https://www.uscis.gov/about-us/directorates-and-program-offices/fraud-detection-and-national-security/fraud-detection-and-national-security-directorate.
\23\ HSPD11, Comprehensive Terrorist-Related Screening
Procedures (Aug. 27, 2004), available at https://fas.org/irp/offdocs/nspd/hspd-11.html.

incorporate security features . . . that resist circumvention to the
greatest extent possible [and consider] information individuals must
present, including, as appropriate, the type of biometric
identifier[s] or other form of identification or identifying
---------------------------------------------------------------------------
information to be presented, at particular screening opportunities.

Since 9/11, USCIS implemented changes in the collection of
biographic and biometric information for document production related to
immigration benefits, including the Application for Employment
Authorization (Form I-765). USCIS must verify the identity of an alien
applying for an EAD and determine whether any criminal, national
security, or fraud concerns exist and changes to biographic and
biometric information improve USCIS's ability to carry out these
functions. Under the current national security and fraud vetting
guidelines, when an adjudicator determines that a criminal, national
security and/or fraud concern exists, the case is forwarded to the
Background Check Unit (BCU) or Center Fraud Detection Office (CFDO) for
additional vetting.\24\ Once vetting is completed and a finding is
made, the adjudicator uses the information provided from BCU and/or
CFDO to determine whether the alien is eligible to receive the
requested benefit.
---------------------------------------------------------------------------

\24\ USCIS conducts background checks on aliens applying for an
immigration benefit because United States immigration laws and
regulations preclude USCIS from granting immigration benefits to
aliens with certain criminal or administrative violations. See,
e.g., 8 CFR 208.7(a)(1) (aggravated felony bar to employment
authorization for asylum applicants).
---------------------------------------------------------------------------

These security procedures implemented post 9/11 and well after the
establishment of the 30-day adjudication timeframe in 1994, coupled
with sudden increases in applications, have extended adjudication and
processing times for applications with potential eligibility issues
discovered during background checks beyond the current regulatory 30-
day timeframe. It would be contrary to USCIS' core missions and
undermine the integrity of the cards issued if USCIS were to reduce or
eliminate vetting procedures solely to meet a 30-day deadline
established decades ago.
In sum, DHS is finalizing elimination of the 30-day processing
provision at 8 CFR 208.7(a)(1) because of the increased volume of
affirmative asylum applications and accompanying Applications for
Employment Authorization, over two decades of changes in intake and EAD
document production, and the need to appropriately vet applicants for
fraud, criminality, and national security concerns. DHS believes that
the 30-day timeframe did not provide sufficient flexibility for DHS to
meet its core missions of enforcing and administering our immigration
laws and enhancing security.
Case processing time information may be found at https://egov.uscis.gov/processing-times/, and asylum applicants can access the
web page for realistic processing times as USCIS regularly updates this
information.

B. Removal of the 90-Day Filing Requirement

DHS is removing 8 CFR 208.7(d), because 8 CFR 274a.13(d), as
amended in 2017, serves the same policy purpose as 8 CFR 208.7(d), and
is arguably at cross-purposes with that provision. Under the 2017 AC21
Rule, certain aliens eligible for employment authorization under
designated categories may have the validity of their employment
authorization (if applicable) and EADs extended for up to 180 days from
the document's expiration date if they file an application to renew
their EAD before the EAD's expiration date. See 8 CFR 274a.13(d)(1).
Specifically, the 2017 AC21 Rule automatically extends the employment
authorization and EADs falling within the designated categories as long
as: (1) The alien filed the request to renew his or her EAD before its
expiration date; (2) the alien is requesting renewal based on the same
employment authorization category under which the expiring EAD was
granted; and (3) the alien's request for renewal is based on a class of
aliens whose eligibility to apply for employment authorization
continues even after the EAD expires, and is based on an employment
authorization category that does not first require USCIS to adjudicate
an underlying application, petition, or request. Id. As noted in the
preamble to the 2017 AC21 Rule and this rule, and as currently
reflected on the USCIS website, the automatic extension amendment
applies to aliens who have properly filed applications for asylum. See
id.; 8 CFR 274a.12(c)(8); 81 FR 82398 at 82455-56 n.98.\25\
---------------------------------------------------------------------------

\25\ See also USCIS, Automatic Employment Authorization Document
(EAD) Extension, https://www.uscis.gov/working-united-states/automatic-employment-authorization-document-ead-extension (last
reviewed/updated Feb. 1, 2017).
---------------------------------------------------------------------------

Because the 2017 AC21 Rule effectively prevents gaps in work
authorization for asylum applicants with expiring employment
authorization and EADs,\26\ DHS finds it unnecessary to continue to
require that pending asylum applicants file for renewal of their
employment authorization 90 days before the EAD's scheduled expiration
in order to prevent gaps in employment authorization. In order to
receive the automatic extension, applications may be filed before the
employment authorization expires, though it is advisable to submit the
application earlier to make allowance for the time it takes for
applicants to receive a receipt acknowledging USCIS' acceptance of the
renewal application, which can be used as proof of the extension, and
to account for current Form I-765 processing times. As the 90-day
filing requirement is no longer necessary, DHS is finalizing removal of
that regulatory provision.
---------------------------------------------------------------------------

\26\ As EAD applicants with pending asylum applications are not
authorized for employment, incident to status, these applicants need
both their authorization and document to be extended. Thus, wherever
DHS discusses expiration, renewal, or extension of an employment
authorization document for this population, it also means
expiration, renewal, or extension of employment authorization.

---------------------------------------------------------------------------

[[Page 37510]]

C. Corresponding U.S. Department of Justice (DOJ) Regulations

This rule removes (1) the 30-day processing provision for initial
employment authorization applications for those with pending asylum
applications, and (2) the 90-day timeframe for receipt of an
application to renew employment authorization. See 8 CFR 208(a)(1), and
(d). These provisions can still be found in the parallel regulations
under the authority of the Department of Justice (DOJ), at 8 CFR part
1208. Compare old 8 CFR 208.7(a)(1) and (d), with 8 CFR 1208.7(a)(1)
and (d).
This rule revises only the DHS regulations at 8 CFR 208.7.
Notwithstanding the language of the parallel DOJ regulations in 8 CFR
1208.7, as of the effective date of this final rule, the revised
language of 8 CFR 208.7(a)(1) and removal of 8 CFR 208.7(d) is binding
on DHS and its adjudications. DHS will not be bound by the 30-day
provision of the DOJ regulations at 8 CFR 1208.7(a)(1). DOJ has no
authority to adjudicate employment authorization applications. DHS has
been in consultation with DOJ on this rulemaking, and DOJ may issue
conforming changes at a later date.

III. Response to Public Comments on the Proposed Rule

A. General Feedback on the NPRM

In response to the proposed rule, DHS received over 3,200 comments
during the public comment period. DHS reviewed the public comments
received in response to the proposed rule and addresses relevant
comments in the preamble to this final rule, grouped by subject area.
DHS does not address comments seeking changes in U.S. laws,
regulations, or agency policies that are unrelated to the changes
proposed in the NPRM. This final rule does not resolve issues outside
the scope of this rulemaking.
1. General Support for the NPRM
Comments: Many commenters provided general expressions of support
for President Trump's overall immigration policies and reforms.
Response: DHS appreciates the expression of support for the
Executive Branch in the realm of immigration policy; however, we note
that the reason for promulgating this rule is to address capacity,
resources, and efficiencies across USCIS operations. The legacy
regulation fails to account for processing changes and increased filing
volumes and does not provide the agency the flexibility it needs to
effectively manage this workload while continuing to provide timely and
accurate decisions across the many other types of benefit requests it
receives.
Comments: Many commenters expressed support for the rule to assist
the agency's thorough vetting processes and protections against fraud
and national security concerns. Some commenters expressed concern that
the 30-day timeframe would force the agency to ``cut corners'' in
vetting processes.
Response: DHS appreciates commenters' general support for this
rulemaking. In all adjudications, USCIS works to provide thorough
vetting to advance U.S. interests, including detecting and deterring
immigration fraud, and protecting against threats to national security
and public safety, while at the same time fairly administering lawful
immigration. The existing timeframe and court order have not resulted
in the agency cutting corners in conducting background checks; however,
it has placed a serious strain on the agency's resources to conduct
these checks within 30 days. Vetting is triggered by individual benefit
requests; in this case, the EAD application. Filing an application for
asylum triggers vetting as does applying for employment authorization.
Review of and resolution of derogatory information relating to an
applicant is conducted within the office handling that particular
application. Asylum applications are processed in asylum offices, while
employment authorization applications are processed in service centers.
Vetting is conducted throughout the adjudication process, however
vetting often is occurring in relation to the particular application
rather than in relation to the alien on an enterprise level.
Comments: Several commenters supported removing ``bureaucratic''
timelines. Commenters expressed that such timelines are arbitrary and
are detrimental to proper vetting of applicants.
Response: USCIS agrees with commenters that a self-imposed 30-day
timeframe is no longer an accurate reflection of the agency's ability
to adjudicate these applications in a sustainable manner. This
rulemaking will allow USCIS greater flexibility to shift workloads
based on service center capacity and to continue to conduct necessary
vetting, while providing accurate and timely adjudications without a
disproportionate impact to the adjudication of other benefit requests.
2. General Opposition to the NPRM
Comments: A number of commenters noted that the proposed rule
contradicts DHS's focus on requiring aliens to be self-sufficient. In
particular, several commenters indicated that this regulation is in
tension with the ``Inadmissibility on Public Change Grounds'' final
rule, which was promulgated in August 2019. See 84 FR 41292 (Aug. 14,
2019). Commenters expressed concern that the potential for a longer
wait to receive employment authorization would prevent asylum seekers
from becoming self-sufficient as quickly as possible and could cause
them to become a public charge. A commenter also cited 8 U.S.C. 1601,
providing a Congressional statement that ``[s]elf-sufficiency has been
a basic principle of United States immigration law since this country's
earliest immigration statutes.''
Response: USCIS disagrees with the premise of these comments.
Asylum seekers are not subject to public charge in the adjudication of
their asylum applications. Likewise, the public charge ground of
inadmissibility is not applicable to asylees seeking adjustment of
status to lawful permanent residence. Since this population is not
subject to inadmissibility based on being likely to become a public
charge, USCIS does not find this rule in tension with rulemaking
related to this ground of inadmissibility. Additionally, the purpose of
this rulemaking is to address the unsustainable burden due to rising
number of EAD applications and the resources required to maintain 30-
day processing times. USCIS data supports the operational need for this
rulemaking based on the significant increase in EAD applications in
recent years as well as increased requirements for security checks and
vetting, which lengthen the time it takes to process each case.
Increasing resources for this adjudication indefinitely to meet an
outdated regulatory timeframe would come at significant cost,
potentially in fees and efficiencies for other benefit requestors.\27\
Additionally, this rulemaking brings the regulations relating to (c)(8)
processing in line with other EAD classifications, for which

[[Page 37511]]

processing timelines were previously removed.
---------------------------------------------------------------------------

\27\ On November 14, 2019, DHS proposed to set a $490 fee for
initial employment authorization applications for those with pending
asylum applications. See U.S. Citizenship and Immigration Services
Fee Schedule and Changes to Certain Other Immigration Benefit
Request Requirements, 84 FR 62280 (Nov. 14, 2019). Although the fee
rule has yet to be finalized, DHS stated that it was proposing to
charge the fee to keep fees lower for all fee-paying EAD applicants.
As discussed in the NPRM preceding this final rule, the agency is
uncertain whether the fee would reduce the overall resource burden
associated with the 30-day timeframe.
---------------------------------------------------------------------------

Comments: Many commenters also indicated concern that this
rulemaking would have a negative impact on applicants' wellbeing in
that delays in EAD application processing would lead to or exacerbate
issues like homelessness, food insecurity, mental health problems, and
lack of access to healthcare.
Response: USCIS strives to process all benefits requests
efficiently and this rulemaking does not make changes to eligibility
requirements or the process by which asylum seekers obtain employment
authorization. Regardless of the underlying basis for applying for
employment authorization, all applicants filing initially are subject
to some period of processing time that may delay their ability to
obtain employment or other services.
Comments: Several commenters opposed the rule on the basis that
EADs are essential to the economic survival of vulnerable asylum
seekers.
Response: This rulemaking does not prevent eligible asylum seekers
from obtaining EADs, nor does it make substantive changes to
eligibility or adjudication requirements. It merely removes a self-
imposed timeframe for USCIS to adjudicate such applications because
that constraint is no longer operationally feasible. USCIS publicly
posts processing time information, so that asylum seekers have
information on how long the adjudicative process is taking and can plan
accordingly. USCIS acknowledges that this rule may cause some
processing delays that may increase the period during which asylum
seekers rely on individuals or organizations for support. This
rulemaking does not aim to create undue hardships, or to cause
unnecessary delays in processing applications. Regardless of the
underlying basis for applying for employment authorization, all
applicants filing initially are subject to some period of processing
time that may delay their ability to obtain lawful employment or other
services. USCIS believes that its operational needs outweigh concerns
over potential minor increases in processing times.
Comments: Some commenters expressed concern that delays in work
authorization would prevent asylum seekers from obtaining valid state
IDs.
Response: Individual state governments determine the documentary
requirements for state-issued identifications and therefore these
requirements are outside USCIS' purview.
Comments: Several commenters indicated they think asylum seekers
should be able to work as soon as possible.
Response: While USCIS acknowledges these commenters' opinions, the
earliest date legally possible is at the 180-day mark, as Congress
explicitly determined that asylum applicants who are not otherwise
eligible for employment authorization ``shall not be granted such
authorization prior to 180 days after the date of filing of the
application for asylum.'' INA section 208(d)(2); 8 U.S.C. 1158(d)(2).
However, the operational realities are not that simple. USCIS is
charged with dutifully administering lawful immigration benefits and
the INA specifically charges the agency with the authority to implement
the law, including the discretion to grant work authorization to those
who have applied for asylum. USCIS endeavors to process benefit
requests as quickly and efficiently as resources allow and will
continue to do so for applicants seeking an EAD based on a pending
application for asylum. This rulemaking simply removes an agency's
antiquated and self-imposed constraint to account for increased
operational and filing volume changes that have occurred over two
decades since the promulgation of the previous rule.
Comments: Commenters stated they believe this rulemaking to be
antithetical to American values. For example, one commenter stated, ``.
. . [the United States is] considered the `land of opportunity' but yet
we refuse to give people running for fear of persecution the
opportunity to try to assimilate to our culture.'' Another stated, ``.
. . [l]et us not forget that we are a nation built on values that those
who need help can always look to this great nation for support and
refuge.''
Response: USCIS disagrees with the commenters' premise. This rule
focuses on USCIS' operational capacity and the resources required to
maintain the 30-day processing timeline as receipts and vetting
requirements have increased drive this rulemaking. Continuously
increasing resources allocated to a particular adjudication type
negatively impacts production for other benefit request types. This
rule does not reduce or eliminate the opportunity for an asylum seeker
who has yet to establish eligibility for asylum on the merits to apply
for or receive an EAD.
Comments: A couple of commenters indicated they thought this
rulemaking was discriminatory to communities of color, including
Hispanic individuals. Another commenter stated the proposed rule would
continue what that commenter claimed was a history of illegally
discriminating against Central and South American migrants.
Response: This rulemaking applies equally to all asylum seekers,
and does not discriminate against aliens based on ethnicity or country
of origin. The demographics of asylum seekers, a population that has
yet to establish eligibility for asylum, shift over time based on
country conditions around the globe. This rulemaking addresses USCIS'
available resources and capacity to process applications for asylum
seekers of all ethnicities and nationalities and the processing changes
provided by this rulemaking will continue to be applied equitably.
Comments: One commenter indicated that they thought the proposed
rule is part of a structure intended to ignore migrants and trap them
in an illegal status.
Response: Aliens seeking asylum must be physically present in the
United States pursuant to INA section 208(a)(1), but may or may not
have entered lawfully or be maintaining lawful status. Further, an EAD
does not change an alien's underlying status or likelihood of being
eligible for asylee status, but simply provides evidence that an alien
is temporarily authorized to work in the United States, in this
instance based on a pending application for asylum.
Comments: Some commenters suggested that the 30-day deadline is
needed to ensure government accountability.
Response: USCIS acknowledges the importance of accountability and
continuously seeks to improve and streamline work processes to improve
efficiency and provide accurate and timely adjudicative decisions. As
with any adjudication, USCIS posts processing times for these
applications so that applicants can understand what to expect.\28\
Applicants have avenues to address excessive delays through case status
inquiries, expedite requests when circumstances warrant, and even
judicial redress through filing a mandamus action to compel a decision.
Removing the 30-day timeframe does not absolve USCIS of its
responsibility to adjudicate applications as quickly and efficiently as
possible but does reconcile changes in processing requirements for
vetting as well as increasing application volume.
---------------------------------------------------------------------------

\28\ See USCIS, Check Case Processing Times, https://egov.uscis.gov/processing-times/ (last view February 26, 2020).
Select the form type and the service center processing the
applicable case.
---------------------------------------------------------------------------

Comments: Some commenters asserted that USCIS is capable of
maintaining the 30-day adjudication

[[Page 37512]]

timeline, as it has been doing so for years.
Response: USCIS has achieved compliance with the Rosario v. USCIS
court order, 365 F. Supp. 3d 1156 (W.D. Wash. 2018), as 96.9 percent of
asylum-related EADs were processed within 30 days for FY2019. USCIS has
had to devote significant additional resources to achieving these
rates, which in turn adversely impacts other lines of adjudications.
The resources needed to sustain this rate as application volumes and
vetting requirements either increase or fail to abate from historically
high levels will continue to force the agency to divert resources from
other priorities at greater levels. This is not sustainable and unfair
to other benefit requestors who also rely on timely adjudications from
USCIS for other immigration status-granting benefit requests.

B. DHS Statutory Authority and Legal Issues

Some commenters provided input on DHS's statutory and legal
authorities to promulgate this regulation.
1. DHS Statutory Authority
Comments: A commenter said the proposed rule contravenes Congress'
intention to protect migrants with well-founded fears of persecution.
Similarly, others commented that the proposed rule contravenes
Congressional intent to promote effective settlement and conform with
international law, as evidenced in the Refugee Act of 1980's
legislative history and its language similar to that of the UN Protocol
on the Status of Refugees of 1967. Another commenter agreed, stating
that the 1967 Protocol and U.S. law were in response to World War II
and the Holocaust.
Response: This rulemaking does not impede an alien's opportunity to
seek asylum in the United States and does not contravene Congressional
intent or explicit Congressional directives. Providing an asylum seeker
with the opportunity to apply for temporary employment authorization
while an application for asylum is pending is a discretionary benefit,
as provided by Congress. See INA section 208(d)(2) (``An applicant for
asylum is not entitled to employment authorization, but such
authorization may be provided under regulation by the [Secretary of
Homeland Security]''). USCIS strives to provide timely and efficient
adjudications for all benefit requests, including asylum and related
benefits, but the significant increases in applications for asylum are
overtaxing our resources to process ancillary benefits within the 30-
day regulatory timeframe.
Comments: Commenters stated that Congress intended for asylum
applicants to have work authorization as soon as possible after the
180-day waiting period, as evidenced by the inclusion of such waiting
period in the Immigration and Nationality Act (INA). Others likewise
commented that INA's express waiting period cannot be extended by DHS,
citing INA section 208(d)(5)(A)(iii), which provides that in the
absence of exceptional circumstances, final administrative adjudication
of the asylum application, not including administrative appeal, shall
be completed within 180 days after the date such application is filed.
The commenters stated that the 180-day statutory waiting period for
employment authorization, taken together with the 180-day statutory
timeframe for asylum adjudications, make clear that Congress intended
asylum seekers to obtain work authorization as expeditiously as
possible; either before 180 days if USCIS adjudicated the asylum
application in that timeframe, or as soon as possible after 180 days if
the asylum application was still pending at that time.
Another commenter stated, ``[t]he Proposed Rule sharply contradicts
a basic principle of United States immigration law since our nation's
earliest immigration statutes were passed: Self-sufficiency,'' citing
to 8 U.S.C. 1601 to justify the requirement for expeditious processing
of asylum seekers' EAD applications.
Response: USCIS respectfully disagrees with the commenters'
statutory interpretation. INA section 208(d)(2) states, in pertinent
part: ``An applicant for asylum is not entitled [emphasis added] to
employment authorization, but such authorization may be provided under
regulation by the [Secretary]. An applicant who is not otherwise
eligible for employment authorization shall not be granted such
authorization prior to 180 days [emphasis added] after the date of
filing the application for asylum.'' The statutory language plainly
creates a minimum requirement for the time an asylum application can be
pending before the discretionary authority to grant employment
authorization is permitted, but does not prohibit a longer wait time,
whether by regulation, policy, or the time it takes to adjudicate such
an application after a minimum of 180 days has passed. The separate
provision articulating a 180-day asylum adjudication timeframe does not
change this conclusion. Had Congress wished to require the Secretary to
authorize employment for applicants after 180 days had elapsed since
the asylum application was filed, it could have indicated that
intention. Cf., e.g., National Defense Authorization Act for Fiscal
Year 2020, Public Law 116-92, sec. 7611(d)(3)(B) (``Liberian Refugee
Immigration Fairness'') (``If an application for adjustment of status
under subsection (b) is pending for a period exceeding 180 days and has
not been denied, the Secretary shall authorize employment for the
applicable alien.''). But Congress did not even require DHS to offer
employment authorization at all, let alone articulate an adjudication
timeframe.
8 U.S.C. 1601 provides a Congressional statement that ``Self-
sufficiency has been a basic principle of United States immigration law
since this country's earliest immigration statute.'' While USCIS agrees
that self-sufficiency is an important aim of immigration law and
policy, USCIS must consider its workloads and the operational impacts
of outdated regulatory timelines for adjudicating EADs for aliens who
have not yet established eligibility for asylum.
Comments: A commenter stated that the INA authorized DHS to
promulgate the proposed rule. The commenter further stated that there
is no fundamental right to seek safety and protection in the United
States.
Response: USCIS concurs that it has the authority granted by the
statute to promulgate this rulemaking. This rulemaking does not,
however, impact an alien's right to seek safety and protection in the
United States, nor does it impose changes to the process or eligibility
requirements associated with seeking asylum.
Comments: Some commenters disagreed with eliminating the 30-day
processing timeframe, stating that it is arbitrary and capricious.
Commenters stated that there was no rational connection between the
proposal and the facts relied upon, that the agency relied on
inappropriate factors, and failed to consider alternatives.
Specifically, they stated that the agency did not disclose the 2018-
2019 processing times, can adequately vet applicants during the 30
days, failed to consider the impact to applicants not receiving an EAD,
and inappropriately considered reduced litigation as a factor.
Commenters also stated that DHS did not adequately consider
alternatives. Specifically, commenters stated that DHS did not explain
why it cannot hire additional staff, why it is abandoning the timeframe
altogether rather than extending it (challenging DHS's comparison to
Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program
Improvements Affecting High-Skilled Nonimmigrant Workers, 81 FR

[[Page 37513]]

82398 (Nov. 18, 2016) (``AC21'')), and asserted that DHS ignored that
before Rosario v. USCIS, 92% of applicants were adjudicated within 90
days.
Response: DHS respectfully disagrees with commenters that it has
not demonstrated a rational connection between its proposal and the
facts before the agency. DHS has updated the rule with more data for FY
2018-2019. In the proposed rule, DHS provided data regarding FY 2017
processing times, described current processing times, explained its
vetting procedures and how they have changed since September 11, 2001,
and showed that most applications that required additional vetting took
more than 30 days to adjudicate. DHS also explained that other
adjudications have been delayed as a consequence of diverting
significant resources from other benefit request types in order to
adjudicate (c)(8) applications within the 30-day timeframe.
DHS considered alternatives, such as hiring additional staff or
extending the timeframe to 90 days. DHS acknowledged that it is working
to comply with the court order's processing times, but that such an
approach is unsustainable due to the extreme resource strain. Even if
DHS were able to hire staff to attempt to mitigate an increased
timeframe from an operational perspective, DHS would still need to
recruit, vet, onboard, and train new adjudicators, and likely extend
the timeframe. Further, extending the regulatory timeframe to 60 or 90
days would not necessarily result in a timeframe that is feasible in
all cases. DHS explicitly stated that before Rosario, it was
adjudicating 92 percent of applications within 90 days, and thus
disagrees with the commenter that DHS ignored that fact. DHS has seen a
drastic increase in asylum applications in recent years, and this
increase was not anticipated, and therefore could not have been
considered when the former INS promulgated the 30-day timeframe more
than 20 years ago. To promulgate another timeframe could lead to
similar results and delays should volumes increase further in the
future.
DHS recognizes that AC21 related to employment-based applications
that do not necessarily involve the same humanitarian considerations.
However, DHS also notes that though AC21 was primarily focused on
employment-based immigration, it did provide for automatic extension of
EADs for those who have properly filed asylum applications. See 8 CFR
274a.13(d)(1). The purpose of the discussion referenced by the
commenter is to make clear why DHS rejected the option of changing the
30-day asylum applicant EAD processing timeframe to 90 days. As DHS
wrote in the proposed rule, maintaining any adjudication timeframe for
this EAD would unnecessarily constrict adjudication workflows.
Ultimately, USCIS is unable to plan its workload and staffing needs
with the level of certainty that a binding timeframe may require, and
has no way of predicting what national security and fraud concerns may
be or what procedures would be necessary in the future.
DHS recognizes potential impacts to applicants of not receiving an
EAD at the earliest possible juncture, however, this rule does not
prohibit or otherwise limit an asylum applicant's eligibility for an
EAD or to apply for or receive asylum. USCIS expects that this rule
will generally align adjudications with USCIS processing times achieved
in FY 2017. A potentially small (such as a 30- to 60-day) delay in
adjudication time, as compared to current processing times, would allow
the agency the flexibility in resources to fully vet applicants through
a sustainable approach for years to come.
Lastly, DHS did not wrongfully consider reduced litigation as a
factor, as it was important and transparent to note to the public that
it anticipated an end to litigation over the 30-day adjudication
timeframe, but that applicants could in some cases still challenge the
agency on ``unreasonable delay'' theories.
Comments: Commenters stated that the proposed rule was an
unsupported significant departure from past policy and that it must
analyze reliance interests, citing FCC v. Fox Television Stations, 556
U.S. 502 (2009). Commenters also stated that the agency's prior
rulemakings on the issue enacted the 30-day timeframe for humanitarian
reasons to mitigate hardships on asylum applicants, ``to ensure that
bona fide asylees are eligible to obtain employment authorization as
quickly as possible (citing to Inspection and Expedited Removal of
Aliens; Detention and Removal of Aliens; Conduct of Removal
Proceedings; Asylum Procedures, 62 FR 10312, 10317-18 (Mar. 6, 1997)).
Commenters stated that this rulemaking does not acknowledge
humanitarian factors.
Response: For reasons discussed elsewhere in this final rule, as
well as provided in the proposed rule, this rulemaking fully
acknowledges the agency's past practice, and provided justifications
and data to support its change. USCIS predicts, and expects, that with
finalizing this rule, adjudications will generally align with DHS
processing times achieved in FY 2017 (before the Rosario v. USCIS court
order, 365 F. Supp. 3d 1156 (W.D. Wash. 2018)). To the extent that
legitimate reliance interests may exist in this context, DHS adequately
addressed such interests in DHS's proposal to grandfather into the 30-
day adjudication timeframe all Rosario class members who filed their
EAD applications prior to the effective date of the final rule.
DHS explicitly recognized its past regulatory history on this issue
and humanitarian concerns in the proposed rule. DHS has tried to find
ways to reduce adjudication times for this population, such as
returning to the processing of affirmative asylum applications on a
``last in, first out'' (LIFO) basis. DHS has further considered
humanitarian factors submitted by commenters, but as noted in the
proposed rule, the existing 30-day timeframe has become untenable. DHS
proposed and is finalizing a solution in this rulemaking that is
intended to balance the agency's core missions with providing an avenue
for asylum applicants to obtain employment authorization. DHS is
committed to adjudicating these applications as quickly as possible in
a transparent and sustainable manner.
2. Rosario v. USCIS Court Order
Some commenters provided input on the court order in Rosario v.
USCIS, 365 F. Supp. 3d 1156 (W.D. Wash. 2018).
Comments: A commenter stated that the rule appears to be an attempt
to reverse Rosario v. USCIS, asserting that it is very doubtful that
courts will favorably review an attempt to reverse the previous ruling
through a regulatory process. Similarly, another commenter said the
proposed rule is an attempt to avoid the Rosario litigation and its
compliance plan, analogizing the latter to a contract.
Response: The decision in Rosario v. USCIS was predicated on the
existing regulatory scheme in which USCIS created a 30-day processing
timeframe. Specifically, the Rosario court order found that USCIS
violated the existing 30-day regulatory timeframe and enjoined USCIS
``from further failing to adhere to the 30-day deadline for
adjudicating EAD applications, as set forth in 8 CFR 208.7(a)(1).'' The
court order is contingent upon USCIS' existing antiquated rule. As the
30-day timeframe was established by agency rulemaking, it can likewise
be changed by agency rulemaking when the agency acknowledges its prior
policy, provides reasons for the change, and promulgates a new rule. As
noted in this rulemaking

[[Page 37514]]

and supported with available data, USCIS has determined that changing
conditions, including increased vetting requirements and rising
application volumes, render the former regulatory scheme nonviable.
With respect to the claim that this rulemaking attempts to avoid
the Rosario litigation and its compliance plan, USCIS respectfully
disagrees with this characterization of the purpose and nature of this
rulemaking. However, USCIS is in compliance with the court order in
Rosario.
Comments: Several commenters stated that the Rosario decision
recognized that the balance of equities supported expedient
adjudication of initial EAD applications so that asylum seekers may
obtain employment authorization when waiting--often for years--to have
their asylum applications resolved. Commenters cited the 1994 proposed
rule, in which INS concluded that it was appropriate to adjudicate
applications for employment authorization within 30 days of receipt,
regardless of the merits of the underlying asylum claim.\29\
---------------------------------------------------------------------------

\29\ See 59 FR 14779, 14780 (Mar. 30, 1994).
---------------------------------------------------------------------------

Response: The rule does not change the basis upon which USCIS may
grant employment authorization to an asylum seeker pursuant to INA
section 208(d)(2). It removes an outdated timeframe for the reasons
stated above. In the vast majority of cases, this will not result in
additional years of delays in employment authorization. The merits of
the underlying asylum application are a separate adjudication and until
a decision is reached on that application, the asylum seeker may be
granted an EAD on the basis of the pending application.
Comments: An organization commented that the Rosario court and U.S.
Supreme Court precedent in Pereira v. Sessions, 138 S. Ct. 2105 (2018),
determined that ``resource constraints'' and vague ``practical
concerns'' do not justify departing from statutory obligations to
protect human welfare. Another commenter stated that the proposed rule
fails to acknowledge this humanitarian factor in its analysis, and an
individual commenter said the proposal cites ``vague'' security
concerns, stating that the federal court in Rosario found such concerns
to be sufficiently low that it ordered USCIS to comply with the 30-day
processing deadline.
Response: USCIS seeks to clarify that the Rosario court considered
Pereira v. Sessions in a footnote, finding that ``meritless
considerations do not justify departing from the law's clear text.''
Rosario v. USCIS, 365 F. Supp. 3d 1156, 1163 n.6 (W.D. Wash. 2018). The
Court considered the human welfare concerns, not security concerns, as
part of its analysis of the TRAC v. FCC, 750 F.2d 70 (D.C. Cir. 1984),
factors. See Rosario, 365 F. Supp. 3d at 1162. With respect to the
claims regarding statutory obligation, USCIS disagrees with the
commenter, as it is not departing from any statutory obligation. INA
section 208(d)(2) explicitly states that an ``applicant for asylum is
not entitled to employment authorization, but such authorization may be
provided under regulation by the Attorney General.'' USCIS has not
departed from the statute's text. The statute also prescribes a minimum
period the asylum application must be pending prior to eligibility for
consideration of an application for an EAD. The fact that the statute
does not mandate employment authorization for this population
demonstrates that the agency could comply with the statute's
obligations to protect human welfare by not providing any avenue for
employment authorization to this population. The agency has not elected
to take that option, but rather has created a regulatory mechanism to
provide an opportunity for employment authorization. Within that
context, resource constraints and operational needs have caused DHS to
reconsider the self-imposed regulatory timeframe. DHS is simply seeking
to align the regulation with a feasible operational reality. With
respect to the fraud and national security concerns discussed in the
proposed rule and in this final rule, DHS reiterates that enhancing
security is a core goal of the agency. USCIS faces limitations in
identifying and tracking fraud, as explained in the GAO report
discussed elsewhere in this preamble, yet the agency must ensure each
applicant is properly vetted and provide its adjudicators with the
requisite time to do so.
3. Other Comments on Statutory Authority or Legal Issues
Comments: One commenter questioned USCIS' authority to set any
deadlines concerning U.S. immigration policies.
Response: As noted in section B of the Executive Summary of this
preamble, 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
immigration and nationality laws and to establish such regulations as
he deems necessary for carrying out such authority. See also 6 U.S.C.
271(a)(3)(A), (b). Further authority for the regulatory amendment in
the final rule is found in section 208(d)(2) of the INA, 8 U.S.C.
1158(d)(2), which states an applicant for asylum is not entitled to
employment authorization, and may not be granted asylum application-
based employment authorization prior to 180 days after filing of the
application for asylum, but otherwise authorizes the Secretary to
prescribe by regulation the terms and conditions of employment
authorization for asylum applicants.
International Law
Comments: A commenter stated that the proposed rule is contrary to
the 1967 Protocol's ``fair and efficient'' asylum standard. The
commenter provided citations to executive statements and case law in
arguing that the 1967 Protocol is an authority in U.S. refugee law.
Another commenter stated that the Universal Declaration of Human Rights
(UDHR) and the United States' commitment to it in the International
Convention on Civil and Political Rights, the Refugee Convention and
Protocol, and the Convention Against Torture create a fundamental right
to asylum that would be weakened by the proposed rule. Another
commenter said the rule is a violation of the Universal Declaration of
Human Rights Article 14, Section 1. Another commenter also cited the
International Covenant on Economic, Social and Cultural Rights (ICESCR)
as providing a right to work that the proposed rule would contravene.
This commenter also cited Article 45 of the Organization of American
States (OAS), Article XIV of the American Declaration on the Rights and
Duties of Man, and Article 6 of the Additional Protocol to the American
Convention on Human Rights in the Area of Economic, Social and Cultural
Rights. Several commenters opposed the proposed rule, stating it
contravenes the intent of the UN Refugee Convention and the Refugee Act
of 1980. Another cited Articles 17 and 18 of the 1951 Refugee
Convention as binding the United States to grant asylum-seekers the
right to employment. The commenter provided examples of other nations
with more generous work authorization laws.
Response: As a threshold matter, this rule does not abrogate the
ability of asylum applicants to seek or receive employment
authorization; rather, it

[[Page 37515]]

simply modifies the timeframes under which applications for such
authorization may be adjudicated.
Although the United States is a party to the 1967 Protocol, which
incorporates Articles 2 to 34 of the 1951 Refugee Convention, the
Protocol is not self-executing. See, e.g., INS v. Stevic, 467 U.S. 407,
428 n.22 (1984); Khan v. Holder, 584 F.3d 773, 783 (9th Cir. 2009). The
United States has implemented Article 34 of the 1951 Convention--which
provides that party states ``shall as far as possible facilitate the
assimilation and naturalization of refugees''--through the INA's asylum
provision, section 208. See INS v. Cardoza-Fonseca, 480 U.S. 421, 441
(1987) (quotation marks omitted). As the Supreme Court has recognized,
Article 34 is ``precatory'' and ``does not require [an] implementing
authority actually to grant asylum to all'' persons determined to be
refugees. Id. Nor is the United States required to provide work
authorization for asylum applicants, let alone within a particular
timeframe.
The INA provides that ``[a]n applicant for asylum is not entitled
to employment authorization, but such authorization may be provided
under regulation by the Attorney General.'' 8 U.S.C. 1158(d)(2). The
implementing regulations establish that, subject to certain
restrictions, an applicant for asylum shall be eligible to request
employment authorization. 8 CFR 208.7(a). While the regulations allow
asylum applicants to request employment authorization, the Act makes it
clear that there is no entitlement to it. Additionally, the Act itself
does not impose a temporal limitation on the agency to complete
adjudications of asylum applicants' application for employment
authorization. Eliminating the 30-day timeframe for adjudication of an
asylum applicant's application for employment authorization is
therefore consistent with the Act, which constitutes the U.S.
implementation of the treaty obligations. See Weinberger v. Rossi, 456
U.S. 25, 34 (1982) (noting the general presumption that U.S. law
conforms to U.S. international treaty obligations).
To the extent that commenters discussed other international
treaties or instruments that articulate certain principles relating to
a right to work, DHS acknowledges those treaties and instruments but
notes that they are either non-self-executing or non-binding or are
treaties to which the United States is not a party.\30\ Here, Congress
has enacted a specific statute authorizing the agency in the realm of
employment for asylum seekers. This rule is within the Department's
statutory authority. In any event, the rule does not bar an asylum
applicant from applying for or receiving work authorization or
qualifying for asylum; rather, it aligns DHS's processing of such
applications with agency resources and provides sufficient flexibility
for DHS to meet its core missions of enforcing and administering our
immigration laws and enhancing security.
---------------------------------------------------------------------------

\30\ See, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 734-35
(2004) (observing that the UDHR ``does not of its own force impose
obligations as a matter of international law''); id. at 735 (``[T]he
United States ratified the [International] Covenant [on Civil and
Political Rights] on the express understanding that it was not self-
executing and so did not itself create obligations enforceable in
the federal courts.'').
---------------------------------------------------------------------------

Other Legal Comments
Comments: A commenter stated that the proposed rule presents a due
process issue in discriminating against asylum applicants by denying
them timely adjudications. Another commenter agreed, stating that
removing the timeframe would effectively allow the government to deny
asylum claims by ``doing nothing'', because removing the timeframe
would deprive applicants of an opportunity to challenge agency delays.
A commenter stated that, by depriving asylum applicants the opportunity
to receive timely 30-day notice of whether or not they have received
employment authorization, this proposed rescinding of the 30-day
timeline violates applicants' Fifth Amendment rights not to be deprived
of life, liberty, or property without due process.
Response: USCIS disagrees with these comments that the rule
violates due process. This rulemaking does not discriminate against
asylum seekers or abridge their rights, as they are still able to apply
for and receive employment authorization, but rather brings the
regulatory scheme by which these applications are processed in line
with processing for other types of applications for employment
authorization. The rulemaking also does not effectively lead to denials
of the underlying asylum claim because it does not amend any of the
eligibility requirements or processes related to the asylum
application. To the extent that it does cause delays in an applicant
receiving an EAD, DHS notes that it expects to return to the processing
timeframe in effect prior to Rosario, which the agency believes is a
manageable and realistic timeframe. Further, providing employment
authorization to those with pending asylum applications is statutorily
authorized but not mandated, and this rulemaking is intended to ensure
that limited resources are allocated in a manner which best allows the
agency to process not only asylum seekers' initial applications for
employment authorization timely, but also all other benefit requests.
Comments: A commenter stated that USCIS must provide a clear
picture of the impact of a proposal in its proposed rule and that
updating its analysis in the final rule does not provide an adequate
opportunity for public comment.
Response: USCIS would direct the commenter to the regulatory impact
analysis in the proposed rule. USCIS monetized the impacts where
possible, and discussed qualitatively those that could not be
monetized. In addition, data updates incorporated in this final rule
have not substantially changed the assessments of the proposed impacts.
See, e.g., 84 FR at 47149 (``The impacts of this rule would include
both distributional effects (which are transfers) and costs.[FN2] The
distributional impacts would fall on the asylum applicants who would be
delayed in entering the U.S. labor force. The distributional impacts
(transfers) would be in the form of lost compensation (wages and
benefits). USCIS 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). However, 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 also
solicited additional data and feedback from commenters. USCIS believes
the proposal itself and the 60-day comment period provided more than
sufficient opportunity for comment.

C. Removal of 30-Day Processing Timeframe

1. DHS Rationale and Need for the Rule
DHS received hundreds of submissions on the need for the proposed
removal of the 30-day processing timeframe or DHS' rationale for the
same.

[[Page 37516]]

Fraud and National Security
Comments: Commenters asserted that security and fraud detection do
not conflict with the 30-day rule, and that USCIS can already take
additional time to process EADs where there is suspected fraud. One
commenter stated that there is no evidence that the 30-day timeframe
resulted in increased grants of fraudulent applications.
Response: DHS disagrees with commenters that if DHS retains the 30-
day timeframe it will be able to take additional time to vet certain
asylum applicants for the EAD, and that fraud detection does not
conflict with the 30-day timeframe. The regulatory timeframe and
Rosario court order restrict the agency's ability to, in a sustainable
manner, fully and thoroughly vet applicants. Additionally, in most
cases where additional vetting was necessitated, the adjudication took
longer than 30 days.
Adequately and thoroughly vetting applicants improves USCIS's
ability to detect fraud and national security concerns on individual
cases as well as identify trends and compile statistical data on cases
involving fraud and/or national security concerns.
Comments: A commenter stated that the majority of EAD applications
are not fraudulent and can be processed quickly, as evidenced by
compliance with the Rosario litigation. The commenter stated that this
indicates that EAD adjudication processes need to change, not the
deadline itself. Similarly, an organization stated that USCIS failed to
provide evidence of fraud impacting the EAD process. An individual also
stated that USCIS has not conducted any investigation as to the extent
of EAD fraud, but that a Government Accountability Office (GAO) report
stated that ``only 374 asylum statuses were terminated for fraud
between 2010-2014. In the same timeframe, well over 400,000 people
fleeing war, disaster, political upheaval and imminent crisis were
admitted to the United States to establish themselves for a better life
and opportunity.'' An individual commenter stated that the reliance on
``fraud'' as the catch-all justification for every change that
undermines the strength of this country's asylum program is
``tiresome.''
Response: USCIS agrees with commenters that the majority of (c)(8)
EAD applicants are found eligible for employment authorization based on
their pending asylum applications and recognizes the adjudication of
employment authorization applications is not a flawless system. For
reasons stated elsewhere in this rule, although USCIS is complying with
the Rosario court order, Rosario v. USCIS, 365 F. Supp. 3d 1156 (W.D.
Wash. 2018), doing so is causing a serious strain on agency resources.
Although USCIS has not published reports regarding fraud by aliens
seeking an EAD based on a pending asylum application, it has internal
procedures to monitor and vet applications and petitions for fraud
risks. The GAO report focused on the merits of the underlying asylum
application, and instances where an alien who was granted asylum status
was later found to have obtained that status by fraud. Additionally,
the GAO findings stated that USCIS has ``limited capabilities to detect
asylum fraud. . . . Identifying and implementing additional fraud
detection tools could enable USCIS to detect fraud more effectively
while using resources more efficiently.'' \31\ The adjudication of
applications for (c)(8) employment authorization is limited in scope to
the instant application, however, and does not render a determination
on frivolity or fraud for the underlying asylum application. The GAO
acknowledges the limitations USCIS faces in identifying and tracking
fraud, and encouraged the agency to implement additional tools to
detect fraud. With this rulemaking, USCIS hopes to provide its
adjudicators with the requisite time to accommodate existing vetting
requirements and to maintain flexibility should trends change.
---------------------------------------------------------------------------

\31\ GAO, Asylum: Additional Actions Needed to Assess and
Address Fraud Risks (Dec. 2015), available at https://www.gao.gov/assets/680/673941.pdf.
---------------------------------------------------------------------------

Fraud is not a constant. It is ever-evolving and efforts to commit
fraud become increasingly sophisticated as methods for detecting fraud
improve. USCIS must be continuously vigilant in an effort to detect new
and advanced efforts to commit fraud. Additionally, agency rigor and
dedication to uncovering fraud schemes serves as a deterrent. No amount
of effort will detect all attempts to commit fraud, but USCIS must
remain focused and diligent in order to deter fraudulent claims. USCIS
relies on all available systems and documents to detect attempts to
commit fraud, which increases the time spent on each adjudication.
Maintaining appropriate vetting while processing historically high
numbers of applications makes the current 30-day timeframe untenable
without diverting significant resources from other benefit request
types.
Comments: Several commenters stated that DHS already has the option
of stopping the 30-day adjudication timeframe if it suspects fraud by
requesting additional proof from an applicant.
Response: While it is true that the 30-day adjudication timeframe
may be paused or restarted in certain instances, according to certain
regulations,\32\ pausing or restarting the adjudication timeframe is
not possible in all instances to accommodate routine background checks
and fraud detection activities and investigations. USCIS disagrees that
it can or should stop the adjudication timeframe in the manner proposed
to accommodate typical adjudicative procedures rather than removing the
timeframe altogether, as this rule does.
---------------------------------------------------------------------------

\32\ See 8 CFR 103.2(b)(10)(ii) and 8 CFR 208.7(a)(2).
---------------------------------------------------------------------------

Comments: A commenter stated that DHS receives biometric
information during the 150-day waiting period, during which it has
ample time to conduct background checks. Another commenter stated that,
by proposing this regulation, USCIS is ``broadcasting'' that it has not
done security checks on asylum seekers whose applications have been
pending for many months. A commenter stated that background checks can
begin with an applicant's arrival at the border, when their biometrics
are taken with the IDENT system and could be compared against FBI and
Interpol databases. Similarly, an individual commenter questioned
USCIS' statement that a slower process will increase national security
because applicants who are seeking work authorization due to pending
asylum applications already have supplied biometric and biographical
data, which should allow processing to go quickly.
Response: USCIS acknowledges that biometric data is often collected
prior to an asylum seeker applying for employment authorization,
including at a border encounter, as part of USCIS' adjudication of an
asylum application, and/or during removal proceedings.\33\ When an
alien submits an application or petition with an associated biometrics
requirement (e.g., a pending asylum application), the data collected in
relation to the asylum application is not systematically linked to a
subsequently filed ancillary application for

[[Page 37517]]

employment authorization. Vetting is triggered by individual benefit
requests, in this case, the EAD application. Filing an application for
an EAD triggers new vetting in association with this application. EAD
officers are not permitted to ``refresh'' or otherwise rely on vetting
performed in association with another application. Because USCIS's
current vetting processes remain tied to the particular benefit request
rather than the individual, vetting is initiated for the EAD
application separate and apart from the asylum application. The
proposed rule to eliminate the 30-day adjudication timeframe for
initial (c)(8) EADs is not an admission of failing to conduct
appropriate vetting in current adjudications, but rather is an
operational necessity as asylum claims have reached historic levels in
recent years, and because of the resources needed to adhere to the
regulatory timeframe. Finally, USCIS notes that asylum seekers are not
required to apply for an EAD and not all applicants will do so, so
there is no operational efficiency to ``pre-adjudicate'' a benefit that
may never be sought.
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\33\ DHS plans to propose a rule to modify its biometrics
procedures, establish consistent identity enrollment and
verification policies, and align USCIS' biometrics collection with
other immigration operations. Office of Management and Budget,
Executive Office of the President, Collection and Use of Biometrics
by USCIS (Fall 2019 Unified Agenda), https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201910&RIN=1615-AC14.
---------------------------------------------------------------------------

USCIS did not propose a slower process, but rather explained how
its vetting procedures have changed since the 30-day timeframe was
implemented more than 20 years ago, specifically to safeguard national
security in response to the September 11, 2001, attacks. USCIS is
removing this timeframe to provide its adjudicators a sustainable
amount of time to complete these vetting procedures, as well as account
for the historic number of filings in recent years.
Comments: Some commenters said fraud concerns are unfounded and
should not cause delays, concluding that if DHS has a concern about an
alien, then it should quickly vet the application, rather than delay
it. Other commenters stated that USCIS' national security statements
serve only to prompt the need for a speedier process to properly
protect national security, rather than a proposal to delay the process
further. Some commenters stated that this need for a speedier process
is further compounded by the fact that the EAD applicants are asylum-
seekers who are already residing in the United States, and having
unvetted people in the U.S. subjected to a potentially indefinite
review period seems contrary to the DHS's stated interests. An
individual commenter concluded that any need for additional vetting
prior to issuance of EADs could be addressed by means other than simply
eliminating the processing parameters for all applicants.
Response: USCIS is charged with administering and safeguarding the
integrity of the lawful immigration benefits. While some background
checks are systematically initiated at intake, safeguarding against
fraud and national security concerns also relies on manual processes in
which officers analyze and assess the information available to them in
the record and electronic databases. Likewise, officers are able to
assess accurately whether a derogatory piece of information actually
relates to the applicant, which allows applicants to receive a decision
far more quickly than if any point of concern was routed outside of
typical processing for additional scrutiny. Concerns involving fraud or
national security are often identified in the course of adjudication,
rather than quickly identified through an upfront review.
USCIS processes all EAD applications for asylum applicants as
quickly as possible, including a careful review of those applications
for aliens who may be flagged for additional scrutiny due to national
security concerns. However, such additional review requires time,
resources, and coordination with law enforcement agencies. Such review
periods are not indefinite and are completed as expeditiously as
possible.
Although there could be alternative means to address additional
vetting, such as alternative timelines, USCIS believes eliminating the
timeframe provides greater flexibility to the agency to balance its
large workload efficiently.
Comments: Some commenters stated that not adjudicating EAD
applications will not reduce national security threats, as asylum
applicants are able to remain physically present in the United States
regardless of the EAD decision. Others provided citations to articles
relating unemployment and crime \34\ to support assertions that the
proposal could be counterproductive to public safety and security, as
asylum applicants would be compelled to find illegitimate sources of
income because of USCIS' refusal to provide them with EADs.
---------------------------------------------------------------------------

\34\ The commenter cited to Karin Edmark, Unemployment and
Crime: Is There a Connection?, 107, The Scandinavian Journal of
Economics No. 2, 353, 370 (Jun. 2005); Steven Raphael and Rudolf
Winter[hyphen]Ebmer, Identifying the Effect of Unemployment on
Crime, Vol. 44 The Journal of Law & Economics No. 1, 259, 280 (Apr.
2001); Mikko Aaltonen et al., Social determinants of crime in a
welfare state: Do they still matter?, Vol. 54 Acta Sociologica No.
2,161 (June 2011).
---------------------------------------------------------------------------

Response: USCIS disagrees that vetting of employment authorization
applications does not reduce national security threats. As part of its
mission as a screening and vetting agency, USCIS conducts national
security and public safety checks on all applications, petitions, and
benefit requests submitted to the agency. As indicated in response to a
previous comment, vetting is triggered by individual benefit requests,
in this case the EAD application. It is possible an asylum applicant
became a potential threat to national security or public safety after
the filing of the asylum application or that new information becomes
available, but USCIS would not know until initiating security checks
when the pending asylum EAD application is received. The agency is
attempting to move away from these ``point in time'' checks, but that
is something we continue to work toward. These checks, during the
adjudication process, allow for referral to the Background Check Unit
(BCU) or Center Fraud Detection Office (CFDO) for additional vetting
where significant concerns are identified, as well as potential
investigation by ICE, all of which take time which does not pause the
30-day regulatory timeframe. Further, in some circumstances, the
findings may render the applicant subject to mandatory detention or
ineligible for the underlying asylum claim and/or the EAD.
USCIS also does not agree that elimination of the 30-day timeframe
and any potential attendant processing delays will negatively impact
security or public safety by driving asylum seekers to criminal
activity. The articles relied on by the commenter discuss studies
conducted that generally find socio-economic status is strongly
associated with crime, specifically property crime. USCIS recognizes
that there may be a correlation between unemployment, socio-economic
status, and crime; however, it does not concur that the extent of the
change (returning to the adjudication timeframe pre-Rosario) would have
such severe effects. Further, an asylum seeker who chooses criminal
behavior to obtain a source of income, rather than waiting to receive
employment authorization could be denied asylum as a result of such
criminal activity, depending on its type and severity.
Comments: Some commenters stated that USCIS makes frequent
reference to a rise in national security threats as a reason to spend
more time and resources on each decision but has reported that it has
been able to decide over 99 percent of EADs within the 30-day timeframe
for over the past year, which proves the agency's ability to adequately
vet requests in a timely manner. Another commenter stated that USCIS'
national security justification is unsubstantiated, especially because
USCIS explains that additional security

[[Page 37518]]

and anti-fraud measures are already built into the EAD adjudication
process. Others stated that the agency had a decade to implement the
post-9/11 security checks that it now claims make the 30-day timeframe
impracticable.
Response: As noted, the agency has had to comply with the Rosario
court order, and as discussed elsewhere in this rule, continuing to
adhere to the 30-day timeframe is not sustainable for USCIS and its
adjudicators, and resources have been moved from other competing
priorities in other product lines.
USCIS acknowledges that certain security checks are built into the
EAD adjudication process across benefit types and this rule does not
change those processes, it simply reflects that such procedures are
resource intensive. Modernized vetting procedures are also not
reflected in the current regulatory timeframe because that timeframe
was created more than 20 years ago. Additionally, the level of fraud
sophistication and the threat immigration-related national security
concerns pose today are more complex than they were when the timeframe
was created. Although the events of 9/11 prompted a new and intensive
focus on national security, especially in the immigration context,
vetting does not remain static as USCIS continually assesses its
methods and systems to improve its ability to detect and deter those
who would enter the United States to do harm. Those who do have ill
intent continue to refine and improve their methods and USCIS must do
the same. In all adjudications, USCIS works to provide thorough vetting
and eligibility determinations and advance U.S. interests in fairly
administering lawful immigration while detecting and deterring fraud
and threats to national security and public safety.
Comments: One commenter asked how long it takes to vet somebody
from another country without any paperwork or medical records.
Response: To the extent that the comment is relevant to this
rulemaking, USCIS notes that the length of the vetting process varies,
and this may depend on the documents an alien seeking asylum may have
in their possession or to which they have access. USCIS uses a
combination of systems, biometrics, and documents to vet aliens
requesting benefits.
Resource Concerns and Efficiency
Comments: A commenter stated that the proposed rule would save
costs by eliminating the need to litigate and comply with Rosario.
Response: USCIS has worked diligently to comply with the Rosario v.
USCIS decision. Though USCIS predicts that this rule would end future
litigation over the 30-day adjudication timeframe, even applications
that are not subject to a set timeframe could, in some cases, be the
subject of litigation on ``unreasonable delay'' theories. USCIS notes
that cost-savings resulting from reduced litigation and the cost from
potential future litigation on ``unreasonable delay'' are not monetized
in the regulatory impact assessment below.
Comments: A commenter stated that USCIS cannot simply rely on the
processing backlog to support its proposal, as the backlog was even
greater when, in 1994, the Justice Department decided to finalize the
30-day rule. A commenter cited the proposal's statement that USCIS
cannot predict future security needs and commented that no proposed
rule can predict the future; however, USCIS faced the same uncertainty
in 1994, when it finalized the 30-day timeframe rule. Others commented
that changes to intake and EAD document production that have been in
place for more than 15 years cannot justify the proposed rule, since
logic would dictate that centralization would make the process more
efficient. Another commenter cited the 2019 Ombudsman Report \35\ as
failing to list intake requirements or security and vetting as
challenges to the timely adjudication of EAD applications.
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\35\ USCIS Ombudsman, Annual Report, 78, (Jul. 2019), available
at https://www.dhs.gov/sites/default/files/publications/cisomb/cisomb_2019-annual-report-to-congress.pdf.
---------------------------------------------------------------------------

Response: USCIS acknowledges that backlogs ebb and flow and agrees
with commenters that, in some cases, an agency cannot predict future
needs. Changing backlogs can result from any number of changed
circumstances, including but not limited to, changes in receipt
volumes, legal requirements, court rulings, regulation and policy
changes, and changes to internal processing. Because of the many
variables which contribute to changing backlogs, USCIS is best able to
process the great number of benefit requests timely when it has
flexibility to adjust workflows and staffing levels across form types.
Hard processing timelines for one benefit type box the agency in and,
as in this case, require the diversion of resources from other benefit
types to maintain a processing time for one individual adjudication
line.
With respect to the 1994 backlog, USCIS recognizes that there was a
sharp increase in initial EAD applications in the mid-1990s. FY 1993
had 90,883 initial EAD applications, which jumped to 176,041 in FY 1994
and remained high with 158,938 in FY 1995 and 120,621 in FY 1996 before
dropping below 50,000 per year for several years. USCIS notes that even
at the peak in 1994, the amount of applications received in 1994 is
considerably lower than the number of applications filed in recent
years, which peaked at 262,965 in FY 2018. And regardless, DHS is not
bound to forever retain the 30-day regulatory timeframe, even assuming
that the INS adopted that timeframe with full knowledge of a growing
backlog. DHS retains the authority to remove the timeframe, and it is
doing so here for the reasons stated in this preamble.
USCIS reviewed the 2019 Ombudsman Report and though it did not list
intake requirements as a reason for increased EAD adjudication times,
it did specifically state that ``background vetting on applications,
including the predicate petitions or applications upon which EAD
applications are based, also contribute to EAD processing times.''
The centralization of the agency's intake and EAD document
production, though implemented in 2006, had led to a need to remove the
30-day timeframe. Centralized, rather than local, intake procedures
provide efficiency in that USCIS is able to leverage contract staff to
conduct high-volume data entry and other associated intake tasks.
However, centralized intake, which occurs at offsite locations, also
incurs delay and costs associated with shipping physical files to
another location for adjudication. To comply with the Rosario court
order, USCIS has been forced to conduct application intake onsite at
the adjudicating office to avoid the delay caused by file shipment.
This process is less efficient and more costly than Lockbox intake, but
is necessary to attain compliance with the Rosario court order. These
changes in intake procedures, coupled with the increased filings and
modifications to vetting procedures, explain why the 30-day timeframe
is no longer feasible.
Comments: A couple of commenters referenced DHS's statement that it
expects to be able to meet FY 2017 adjudication timeframes, i.e., to
adjudicate 78 percent of EAD applications within 60 days. The
commenters stated that this contention seems disingenuous considering
that DHS does not propose a 60-day timeframe. The commenters went on to
state that DHS's lack of commitment to a specific timeframe coupled
with current EAD backlogs does not support

[[Page 37519]]

DHS's claim of being able to adjudicate 78 percent of EAD applications
within 60 days. Another commenter referenced the 78 percent statistic
and asked if this would continue to occur if USCIS is not mandated to
return them within 60 days. Another commenter stated that, even now,
with guidelines in place, the agency fails to meet the 30-day mandate
in more than half of cases.
Response: USCIS would like to provide clarity to commenters
regarding the adjudication rates. USCIS stated that 78 percent of
initial applications were adjudicated within 60 days prior to the
Rosario court order, but since its issuance, USCIS has been in
compliance with the order. USCIS continues to face a significant
backlog but strives to provide timely adjudication across all form
types, regardless of a regulatory timeframe. As stated in the proposed
rule, DHS expects to return to the pre-Rosario timeframe with
finalizing this rule, but it will not codify another regulatory
timeframe at this time. While USCIS cannot predict ebbs and flows in
receipts, removing the 30-day timeframe without creating another
regulatory timeframe allows the agency to adjust workflows and staffing
resources to maintain timely processing for this and other benefit
requests.
Comments: A commenter stated that USCIS is unable to support either
its justifications or its impact analysis without citation to recent
and actual processing times. The commenter went on to state that USCIS
explains that the court order has forced it to focus more resources on
adjudicating initial EADs for asylum, but it does not explain how it
allocated its resources before, which types of cases it prioritized,
and which specific case types are suffering as a result of the court
order. Further, this commenter said USCIS claims that the current rule
is outdated, and the current adjudication process is more complex, but
fails to recognize other important conditions that have changed since
the rule was adopted (more funding, staff, and technology). Lastly, the
commenter cited to the statement in the proposed rule that, if USCIS
could predict a reduction in total application volume, such a reduction
``would not, on its own, serve as a sufficient basis to leave the 30-
day adjudication timeline in place'' to demonstrate that USCIS admits
that it would have proposed this rule regardless of the additional
resource burden. The commenter states that this removes resource burden
as a standalone justification for the proposed rule.
Response: USCIS's resource allocations and prioritizations are
fluid and regularly adjusted based on demand, processing time
constraints, resource availability, legislative and policy changes, and
other considerations. To comply with the Rosario decision, USCIS
increased officer hours for adjudication of initial (c)(8)
applications, and centralized these adjudications to minimize time lost
to file movement and allow for more accurate tracking of class members'
applications, which has placed a strain on the agency's resources in a
manner that is difficult to sustain. USCIS did provide recent and
actual processing times in the proposed rule, and has supplemented this
final rule with updated data. USCIS also explained in the proposed
rule: (1) How its adjudications have changed and resources have shifted
since the 30-day provision was promulgated, (2) how it prioritizes
adjudications through LIFO \36\, and (3) how changes in technology and
security initiatives have impacted the process. While USCIS continues
to work to improve efficiency and modernize adjudicative processes, the
initial (c)(8) EAD applications continue to be filed on paper and
processed using an older case management system. Unfortunately,
modernizing intake and adjudication systems is a lengthy and labor
intensive process and there is currently no expected timeframe in which
USCIS expects a more modernized process for initial (c)(8) EAD
applications.
---------------------------------------------------------------------------

\36\ USCIS did note in the proposed rule that it anticipated
updating its data regarding LIFO in the final rule; however, the
change to LIFO was accompanied by a historic increase in filings,
and it has been difficult for USCIS to ascertain all of the impacts.
---------------------------------------------------------------------------

With respect to the agency's statement on reduced application
volume, USCIS disagrees with the commenter's understanding that it
would have proposed this rule regardless of the current resource
burden. While the number of applications received has dropped from peak
levels in 2018, the situation created by unforeseen and sustained
spikes in application volumes highlighted that such specific regulatory
timeframes can cause significant operational burdens when circumstances
outside USCIS' control and ability to anticipate occur. USCIS
acknowledged that it could not predict how administrative measures and
external factors, such as immigration court backlogs and changes in
country conditions, would affect total volumes. It then acknowledged
that even if it could predict such circumstances, it was proposing to
remove the timeframe ``in light of the need to accommodate existing
vetting requirements and to maintain flexibility should trends
change.'' 84 FR at 47161.
Comments: Multiple commenters stated that USCIS' compliance with
the Rosario court order demonstrates that a 30-day timeframe is
practicable and that USCIS could comply with the 30-day timeframe and
retain vetting procedures, contrary to the proposed rule's contention
that USCIS would have to reduce or eliminate vetting to continue
complying. Another commenter cited to the 2019 Ombudsman Report and
commented that the EAD processing delays had been increasing before the
Rosario decision and were unrelated to any reallocation of resources.
One commenter stated that ``USCIS time frames posted publicly'' show
that Form I-765 takes mere minutes to process. The commenter stated
that because it takes mere minutes to process such applications, it is
only reasonable to retain the 30-day timeframe.
Response: DHS recognizes that EAD processing times had been
increasing prior to Rosario, but DHS asserted and continues to assert
that its reallocation of resources occurred due to the litigation and
in order to comply with the court order, and that such reallocation of
resources is not a long-term, sustainable solution because USCIS has
many competing priorities and many time-sensitive adjudication
timeframes. Although USCIS is currently in compliance with the Rosario
court order, it continues to reiterate that maintaining the 30-day
timeframe is not sustainable. This rulemaking is intended to ensure
that limited resources are allocated in a manner which best allows the
agency to process not only asylum seekers' initial applications for
employment authorization timely, but also all other benefit requests,
as maintaining the current 30-day processing time is already
significantly diverting resources from other adjudications and is
expected to continue to do so. Further, since the initial (c)(8)
application does not currently require the applicant to pay a fee,\37\
other benefit requestors are bearing the cost of these adjudications
while resources are pulled away from the adjudication for which they
paid a fee. This rulemaking brings the regulatory scheme by which these
applications are processed in line with

[[Page 37520]]

processing for other types applications for employment authorization.
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\37\ DHS has proposed to set a $490 fee for initial employment
authorization applications for those with pending asylum
applications. See U.S. Citizenship and Immigration Services Fee
Schedule and Changes to Certain Other Immigration Benefit Request
Requirements, 84 FR 62280 (Nov. 14, 2019). DHS has not yet issued a
final rule with respect to that proposal.
---------------------------------------------------------------------------

DHS acknowledges that the time an officer spends on the actual
adjudication may take ``mere minutes'' on applications without
eligibility or fraud concerns, but the time an officer spends on a
particular application is not indicative of the totality of work that
is involved in receiving, vetting, adjudication, and document
production. The USCIS Case Processing Time website provides regularly
updated and accurate total case processing time information at https://egov.uscis.gov/processing-times/.
Other Comments
Comments: Several commenters stated that the true intent of the
proposal is to serve as deterrent for asylum applicants seeking
protections in the United States. Other commenters made similar
statements, citing the Migrant Protection Protocols, and rules such as
Asylum Eligibility and Procedural Modifications.\38\ Similarly, another
commenter said indefinitely blocking asylum seekers' ability to support
themselves and their families is an abuse of discretion and an attempt
to further deter people from seeking asylum in the United States.
---------------------------------------------------------------------------

\38\ 84 FR 33829 (July 16, 2019).
---------------------------------------------------------------------------

Response: DHS acknowledges commenter concerns; however, this
rulemaking is not intended as a deterrent and does not impede an
alien's opportunity to seek asylum in the United States. Neither does
this rulemaking change the process by which an alien seeks asylum or
any eligibility criteria for obtaining asylee status. This rule solely
affects a benefit an asylum seeker may request while their application
for asylum has been pending for a period of at least 180 days. USCIS is
simply removing a self-imposed agency processing timeline that is no
longer operationally feasible, without impacting the underlying basis
for the benefit request.
Employment authorization for applicants with a pending asylum
application, however, is not a statutory entitlement, unlike employment
authorization for asylees, who are eligible for employment incident to
status, as the statute explicitly states. Compare INA section
208(c)(1)(B) with (d)(2) (``An applicant for asylum is not entitled to
employment authorization[.]''). USCIS has provided a regulatory avenue
for asylum applicants to seek employment authorization; thus, the
agency has not indefinitely blocked an applicant's ability to support
themselves and their families. USCIS strives to provide timely and
efficient adjudications for all benefit requests, including asylum and
related benefits, but the significant increases in applications for
asylum in recent years are overtaxing agency resources to process
ancillary benefits within the 30-day regulatory framework.
Comments: A commenter questioned the benefit of the proposed rule,
reasoning that it would not reduce the immigration backlog any more
quickly than the current timeframe and asking whether the purpose of
the rule was to redirect resources to ICE. Similarly, a commenter
questioned how the added ``flexibility'' from the proposal would help
reduce immigration application backlogs, faulting DHS for refusing to
commit to reducing other wait times as a result of eliminating the 30-
day EAD timeframe. Another commenter stated that removing the incentive
for USCIS to work quickly will result only in obligations being
stripped and will not cause the agency to work more effectively.
Response: DHS did not assert that this change would reduce
immigration benefit request backlogs, but rather that it was proposing
this change, in significant part, because of the strain of the growing
backlog coupled with the steady stream of new filings. This rulemaking
is not an effort to redirect resources to ICE. In order to maintain the
current 30-day processing time, USCIS has taken a number of dramatic
measures to ensure compliance. This includes centralizing the workload
in one service center to allow for close monitoring and reporting
practices, eliminating lost time accrued through shipping physical
files, and diverting both support and officer resources to ensure the
timeline is met. With finalizing this rule, those diverted resources
could return to the roles they performed prior to Rosario. DHS has
chosen not to commit to defined adjudication times across all of its
employment-authorization processing in order to provide flexibility for
the agency to allocate its resources. As noted in the proposed rule,
codifying by regulation any new adjudication timeframe for EADs would
unnecessarily constrict adjudication workflows and the agency is unable
to plan its workload and staffing needs with the level of certainty
that a binding timeframe may require. Removing the 30-day timeline will
allow greater flexibility, including to share this workload among other
service centers and reallocate resources more evenly to meet demand.
Comments: A commenter cited a past rulemaking \39\ to state that
the 30-day deadline was initially implemented to ensure that bona fide
asylees were eligible to obtain employment authorization as quickly as
possible, not to ensure that USCIS and former INS had sufficient time
to process applications.
---------------------------------------------------------------------------

\39\ Department of Justice, Inspection and Expedited Removal of
Aliens; Detention and Removal of Aliens; Conduct of Removal
Proceedings; Asylum Procedures, 62 FR 10312-01 (Mar. 6, 1997).
---------------------------------------------------------------------------

Response: DHS has reviewed extensively the regulatory history of
the promulgation of the employment authorization provisions for those
with pending asylum applications. The rulemaking preamble cited to by
commenter, and referenced in DHS's proposed rule, discusses the
employment authorization provisions that ``ensure that applicants who
appear to an asylum officer to be eligible for asylum but have not yet
received a grant of asylum are able to obtain employment
authorization.'' 62 FR 10317. The rulemaking then discusses the lengthy
process of identity and fingerprint checks, and states that given the
statutory requirement that asylum not be granted until inadmissibility,
deportability, or ineligibility are determined at INA section
208(d)(5)(A)(i), an alien who would otherwise appear to be eligible may
have to wait a lengthy period of time before being granted employment
authorization. Id. at 10317-18. The agency believed such a result was
contrary to a main goal of the asylum reforms promulgated in 1995: ``to
ensure that bona fide asylees are eligible to obtain employment
authorization as quickly as possible''. Id. ``Bona fide'' asylees are
those who have been deemed eligible by the agency but have not yet
received an approval.
USCIS is committed to adjudicating all employment authorization
applications as quickly as practicable, however, both internal
processes and external factors have changed in the intervening decades
since the 30-day rule was promulgated.
3. Alternate Suggestions for Regulatory Amendments to 30-Day Timeframe
Approximately 310 commenters provided alternative suggestions for
regulatory amendments to 30-day processing timeframe.
Alternative Proposals and Timeframes Rather Than Complete Removal
Comments: Some commenters said DHS should have proposed an
alternative or extended adjudication

[[Page 37521]]

timeline, such as 45 or 60 days, or condition the length of the
adjudication timeframe on reportable metrics, rather than a complete
timeframe removal, in order to provide predictability and relief to
asylum seekers. Some commenters stated that removing a timeframe
without providing an alternative suggests that USCIS anticipates these
applications being significantly delayed. Another commenter stated that
the absence of an adjudication deadline is likely to result in
unnecessarily lengthy adjudication periods for EAD applications, which
are relatively simple to resolve and should not require more than 30
days. A few commenters stated that DHS has not sufficiently justified
why an alternative or longer deadline would not be acceptable. Another
commenter said amending a rule to limit the burden on USCIS to ensure
the betterment of our country might be a good idea but doing so by
removing the deadline without replacing it is not.
Response: DHS considered imposing a 90-day timeframe rather than
removing the timeframe entirely, and discussed this extensively in the
proposed rule. DHS appreciates commenters' suggestions regarding
alternative timeframes, and recognizes that setting another timeframe
could provide more predictability to asylum seekers and would provide
USCIS with more time to adjudicate EAD applications. However, USCIS
determined not to incorporate a new regulatory timeframe because USCIS
is unable to plan its workload and staffing needs with the level of
certainty that a binding timeframe may require, and has no way of
predicting what national security and fraud concerns may be or what
procedures will be necessary in the future. It is imprudent to impose
hard processing deadlines, because USCIS cannot reliably predict future
workload, processing, and other changes. Although imposing a deadline
reliant on reportable metrics may alleviate some of the concern of a
hard deadline, the commenter proposed no specific metrics and creating
additional tracking and predictive assessments from the agency that
have not yet been evaluated would be an imposition to the agency.
Further, USCIS did not propose this approach or relevant metrics and
thus to finalize such metrics in this final rule would be outside the
scope of this rulemaking.
The processing of EAD applications is not simple, and increases in
asylum-based filings in recent years, coupled with the changes to
intake and vetting procedures, have placed a great strain on agency
resources that lead to an increased processing time. DHS recognizes
that removing the timeframe may cause concern to applicants regarding
potential delays in adjudication; however, USCIS expects to return to
the adjudicatory timeframe before Rosario. While USCIS anticipates this
change may lead to short processing delays, this change brings initial
EAD application processing in line with other similar applications and
allows operational flexibility to shift workloads and continue to vet
and adjudicate applications in the most timely fashion practicable
without detrimental impact to other benefit request types.
Comments: A commenter drew similarities to the AC21 rule repealing
former 8 CFR 274a.13(d), which guaranteed the adjudication of
employment authorization applications for most immigrant and
nonimmigrant categories within 90 days, replacing it with, what the
commenter claimed was an inadequate automatic 180-day extension. This
commenter stated that the lack of any processing deadline on initial
applications has caused significant disruption in the lives of those
subject to the changed rule. The commenter opposed this change for
similar reasons, stating that, without a clear processing deadline,
asylum seekers and their families are faced with uncertainty as to
whether they will be able to support themselves, and this
unpredictability will severely impact them and their communities.
Response: With respect to commenter's concerns regarding AC21,
USCIS does not possess data or other evidence to address the
commenter's subjective assertion that processing times for other EAD
categories have caused ``significant disruption in the lives of those
subject to [AC21].'' In FY 2017, USCIS processed 94.2 percent of EAD
classifications, excluding (c)(8), within 180 days; in FY 2018 it was
83.4 percent, in FY 2019, 81.5 percent, and as of February 29, 2020, 84
percent within 180 days. USCIS acknowledges the potential effect of
this change on asylum seekers and their social support networks, but
must weigh that effect against the impacts on other benefit requestors
and USCIS operational realities given changed vetting requirements and
increased receipt volume in recent years. By allowing the agency
flexibility to shift workloads and resources to accommodate external
and internal changes in the application landscape, USCIS believes this
rule will allow greater efficiency throughout EAD application types.
USCIS recognizes the potential uncertainty that may result and
routinely updates publicly available processing times \40\ to provide
applicants with accurate information to plan for when to file
applications and their personal financial needs.
---------------------------------------------------------------------------

\40\ Case processing time information may be found at https://egov.uscis.gov/processing-times/, and asylum applicants can access
the web page for realistic processing times as USCIS regularly
updates this information.
---------------------------------------------------------------------------

Comments: Some commenters suggested that USCIS allow asylum-seekers
to submit their employment authorization applications earlier (for
example, after 90 days or 120 days instead of 150 days), or
concurrently with their asylum applications, to allow USCIS more time
to properly vet each alien while reducing the risk of harm to each
applicant and the economy. Some commenters stated that under INA
section 208(d)(2), asylum seekers may not be granted an initial EAD
until their asylum applications have been pending for 180 days, but
nothing prevents USCIS from accepting initial EAD applications
concurrently with the filing of the asylum application. Commenters also
stated that the number of EAD applications has dropped since 2017 and
will likely continue to do so. Another commenter said concurrent
filings would reduce costs to legal services providers and asylum
seekers, by allowing both the Form I-589, Application for Asylum and
Withholding of Removal, and the Form I-765, Application for Employment
Authorization, to be finalized in a single appointment.
Response: DHS appreciates commenters' suggestions to permit asylum
applicants to file during the 150-day waiting period. USCIS thinks,
however, that allowing an applicant to file for and obtain an EAD
earlier based on a pending asylum claim creates an incentive to file
non-meritorious asylum applications. Additionally, allowing asylum
seekers to file earlier creates a different operational burden. Because
the statutory scheme mandates that employment authorization cannot be
granted until the asylum application has been pending for a minimum of
180 days, not including delays requested or caused by the applicant,
USCIS would need to implement new tracking and records mechanisms to
ensure applications would not be adjudicated too early. This would
impede the agency's ability to nimbly move workloads between centers
and officers. Allowing applicants to file earlier than the 150 day
timeline currently in place would necessitate creation of a new clock
system to track how long asylum applications were pending prior to
approval, in order to avoid approving an EAD when the asylum
application had

[[Page 37522]]

been pending less than 180 days. This would require tracking and
potentially holding applications over a longer span of time, adding
complexity, and would additionally complicate accounting for
applications subject to the prior rules and those subject to this rule
on or after its effective date.
The burden associated with statutory compliance would create new
operational costs related to new and additional tracking as well as
bifurcated requirements related to cases pending on or after the
effective date of this rule while not creating new efficiencies. Asylum
applications are adjudicated by Asylum Officers within the Refugee,
Asylum, and International Operations directorate, while applications
for EADs are processed by Immigration Services Officers within the
Service Center Operations Directorate. Asylum Officers receive
intensive and specialized training to understand the nuances and
sensitivities involved in assessing eligibility for asylum. Immigration
Services Officers also receive specialized training, but they are
frequently trained to adjudicate many different benefit request types
and, as located in service centers, and do not have face to face
interactions with benefit requestors. In short, the nature of and
procedures for these adjudications are very different. If USCIS allowed
concurrent filing, the applications would still need to be adjudicated
through completely different processes. Additionally, as the proposed
rule did not contemplate allowing earlier filing, it is outside the
scope of this rulemaking.
DHS acknowledges that the volume of initial (c)(8) EAD applications
has dropped slightly as compared to 2017. However, as of FY 2019, this
type of application remains historically high, with FY 2018 receipts at
262,965 and FY 2019 at 216,038; maintaining the 30-day timeframe poses
an unsustainable burden during periods of high application volumes,
while allowing applicants to file earlier would create additional
administrative costs and burdens.
USCIS Should Acquire More Resources Instead of Removing the Timeframe
Comments: Several commenters stated that, rather than proposing
this rule, DHS could acquire more resources for operations at each
service center as well as at card production facilities (for example,
by hiring more adjudication staff). A commenter said fees for other
forms could be increased to accommodate the cost of hiring additional
adjudicators. However, the commenter said, with the recent elimination
of an entire category of eligibility for fee waivers, it seems likely
that fee increases would not even be necessary to increase revenue.
Similarly, another commenter proposed hiring more USCIS staff as a
solution, even if that means including a fee payment I-765 on asylum
applications. Several commenters took issue with DHS's rationale that
hiring staff ``would not immediately'' shorten adjudication timeframes,
stating that it is no excuse for not considering that alternative, and
that the concern should be whether doing so would address the issue
long-term. Another commenter stated that the temporary delay between
hiring new employees and their ability to process applications does not
require a permanent elimination of a fixed processing timeframe.
Response: DHS seeks to complete every request as soon as it
possibly can while ensuring that benefits are provided only to those
who are eligible. As stated in the proposed rule, DHS has determined
that it should not be subject to a procedural deadline codified in
regulations to adjudicate a certain immigration benefit request in a
very short time. As the commenters note, USCIS is authorized by law to
set fees at a level necessary to recover the full costs of adjudication
and naturalization services. See INA section 286(m), 8 U.S.C. 1356(m).
As required by the Chief Financial Officers Act of 1990 (CFO Act), 31
U.S.C. 901-03, USCIS analyzes its costs every two years to determine if
its fees are adequate to recover its full costs. If fee revenue is
projected to be too high or low, USCIS conducts rulemaking to adjust
its immigration benefit request fees to the amounts necessary to cover
its operating costs. See, e.g., 84 FR 62280 (Nov. 14, 2019). In
November of 2019, DHS published a proposed rule that proposes a new fee
schedule, including a fee for an initial EAD for asylum applicants. Id.
at 62320.
DHS stated in the proposed rule for this rulemaking that providing
the resources to meet this regulatory timeframe requires USCIS to use
fees paid by other benefit requestors. See 84 FR at 47165. DHS believes
USCIS requires the flexibility to devote its resources where they are
needed to meet seasonal demands, filing surges, and DHS priorities and
not to meet an outdated regulatory deadline. Therefore, DHS will remove
the 30-day deadline from the regulations.
Further, even if and when the funds are available to hire
additional staff and officers, there is a significant lag time in the
course of posting job announcements, selecting candidates, background
investigations for selectees, onboarding, and training and mentoring
before new hires are able to adjudicate. Throughout this time, backlogs
build and resources continue to be diverted to support programs with
processing timelines.
While DHS recognizes that the suggested staffing solution may be
more long-term, the agency does need an immediate solution, as
resources continue to be strained. While USCIS strives to maintain the
staffing necessary to timely process all benefit request types and
continuously analyzes workload trends and production, simply hiring
more people does not provide a short term fix and, even when new hires
are working at full competency, shifting demands and priorities
continuously present new challenges that are even more difficult to
adjust to with a processing timeline in place. As noted in the proposed
rule, hiring additional staff may not shorten adjudication timeframes
in all cases because (1) additional time would be required to onboard
and train new employees, and (2) for certain applications, additional
time is needed to fully vet an applicant, regardless of staffing
levels.
Comments: A commenter said the rule suggests that it would be too
expensive to hire additional officers to keep up with timely processing
and cites to ``the historic asylum backlog,'' but the commenter stated
the reasoning appeared to be pretextual since the proposed regulations
only deal with initial EADs filed by asylum seekers and not EAD
renewals for asylum seekers whose cases are currently in the asylum
office backlog.
Response: The USCIS Asylum Division received 44,453 affirmative
asylum applications in FY 2013, with increases each year up to a peak
of 142,760 in FY 2017. This more a than three-fold increase in four
years not only created backlogs in processing asylum applications, but
also caused a steep increase in the number of both initial and renewal
applications for employment authorization, with FY 2018 totals at
324,991 and FY 2019 totals at 551,266.\41\ Both the initial workload
and renewal workload are processed by officers with different
specialized training to provide a more streamlined and efficient
adjudication

[[Page 37523]]

process. Further, EAD renewal applications for asylum seekers are not
subject to adjudication timelines, and also have an automatic extension
clause to mitigate any lapse in employment authorization for these
aliens. The 30-day rule and Rosario court order have created the
necessity for a centralized process to ensure compliance, which
prevents USCIS from shifting workloads among officers trained to
adjudicate EAD applications, when it may be more efficient and offer a
more timely adjudicative process. This rulemaking aims to improve
flexibility and efficiency by taking away barriers to using existing
resources to the greatest effect.
---------------------------------------------------------------------------

\41\ EADs currently have a 2-year validity period and this can
cause cyclical fluctuations in renewal rates. The renewal receipts
for FY 2018 were 62,026, which reflects the lower initial filings in
FY 2016 (although receipt and adjudication dates routinely cross
fiscal years, so this may include a portion of initial filings from
2015 and 2017). It is noted that replacement filings are excluded
from the figures, as they are not relevant to this rulemaking.
---------------------------------------------------------------------------

Comments: A commenter stated that the proposals that USCIS should
hire and train more adjudicators ignores Congress' mandate that USCIS
benefits processing costs must be funded through user fees. The
commenter stated that USCIS should not be compelled to arbitrarily
adhere to a rigid and disruptive processing deadline for ``guaranteed''
30-day asylum EAD processing unless and until user-provided fee revenue
is available to fully fund the needed dedicated agency personnel and
resources.
Response: While USCIS fees are set through rulemaking and hiring
additional adjudicators would not ignore a Congressional mandate, USCIS
appreciates the commenter's understanding of the constraints involved
in resources and hiring.
Ombudsman Report
Comments: Several commenters said USCIS failed to consider
recommendations from the 2019 USCIS Ombudsman Report, which recommends
that the agency take several steps to ensure timely adjudication of
EADs, including augmenting staffing, implementing a public education
campaign to encourage applicants to file I-765 renewal applications up
to 180 days before the expiration of the current EAD, and establishing
a uniform process to identify and expedite processing of EAD
application resubmissions filed due to service error. Another commenter
stated that the rule ignored the Ombudsman's recommendation of
incorporating the Form I-765 into the agency's eProcessing procedures,
which the commenter indicated would expedite the review process and
improve review for purposes of fraud and national security concerns.
Response: USCIS carefully considers the observations and
recommendations provided by the USCIS Ombudsman and if it agrees with a
recommendation, implements it to the extent practicable. The
conclusions and recommendations referenced by commenters were the
Ombudsman's recommendations for all EAD adjudications, and were not
specific to the asylum-based applications and therefore not totally
relevant to a 30-day processing timeframe. Nevertheless, as discussed
elsewhere in response to comments, augmenting the staff dedicated to
asylum-based EAD applications would not immediately and in all cases
shorten adjudication timeframes, and would increase the cost-burden on
the agency. With respect to implementing an education campaign, USCIS
will update its public sources of information, such as the Policy
Manual and website, provide updated information regarding the changes
to expect relating to the promulgation of this rule, and continue to
provide regular updates to processing times. With respect to
establishing a uniform process to expedite resubmissions filed due to
service error, USCIS has published guidance on its website \42\ for
obtaining a corrected EAD if there was a government error in the
issuance as well as guidance for requesting expedited adjudication.\43\
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\42\ USCIS, Employment Authorization Document (last updated Apr.
5, 2018), https://www.uscis.gov/greencard/employment-authorization-document.
\43\ USCIS, How to Make an Expedite Request (last updated May
10, 2019), https://www.uscis.gov/forms/forms-information/how-make-expedite-request.
---------------------------------------------------------------------------

USCIS is also working diligently to develop the IT infrastructure
and systems needed for eProcessing, and acknowledges the benefits of
eProcessing, especially with regard to efficiency and national
security. This is a time and labor intensive endeavor, requiring the
collaboration of developers and subject matter experts and others, as
well as extensive testing and demos to ensure the new system and
features function properly. USCIS is working and will continue to work
towards full eProcessing across all benefit request types,\44\ but
there is currently no estimate available for when the application for
an EAD will be available for eProcessing.
---------------------------------------------------------------------------

\44\ See Office of Management and Budget, Executive Office of
the President, Electronic Processing of Immigration Benefit Requests
(Fall 2019 Unified Agenda), https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201910&RIN=1615-AC20; USCIS, USCIS Accelerates
Transition to Digital Immigration Processing (May 22, 2019), https://www.uscis.gov/news/news-releases/uscis-accelerates-transition-digital-immigration-processing-0.
---------------------------------------------------------------------------

Other Suggestions
Comments: One commenter suggested providing each asylum applicant
an option of temporary work permit that can be cancelled if any red
flags are found during further screening of the individual applicant.
Response: USCIS disagrees with commenter's suggestion, as the
agency believes providing a temporary work permit at the time of
initial filing invites fraud and abuse. A benefit that would be
bestowed automatically simply upon filing provides no opportunity for
vetting and encourages frivolous filings to obtain even a short-term
benefit. Frivolous filings, in turn, exacerbate backlogs and cause
greater delays in processing applications for those with meritorious
claims.
Comments: One commenter suggested increasing the validity of (c)(8)
EADs from 2 years to 5.
Response: Though DHS recognizes that increasing the validity period
of an EAD may reduce the burden to adjudicate renewal EAD applications,
the agency does not believe doing so would alleviate the burden the
agency faces in adjudicating initial filings, which was the main goal
of this rulemaking. Additionally, renewals of EADs for aliens with a
pending asylum applications are not subject to the 30-day adjudication
deadline.
Comments: One commenter recommended creating a new document for
those granted asylum that clearly states that the asylee is authorized
to work in the United States without restrictions, which would
eliminate the entire (a)(5) product line (for those granted asylum and
authorized to work incident to status) and free up adjudicators to work
on (c)(8)s.
Response: This rule pertains to applicants for asylum, meaning
those who have applied for asylum status but have not yet had their
asylum application adjudicated on the merits. If an alien is granted
asylum status, they are authorized to work incident to status, meaning
that he/she no longer needs to apply for employment authorization but
receives such authorization as an automatic benefit of that status. See
8 CFR 274a.12(a)(5). Accordingly, the process contemplated by the
commenter already exists and the agency still faces resource
constraints.
Comments: A commenter stated that, if DHS is not able to meet a 30-
, 60-, or even 90-day deadline in all cases, it could institute a
tiered or alternative system of deadlines for cases that require
additional security vetting. The commenter said a stop-time mechanism
for cases that require additional vetting would be a feasible way to
maintain a fixed processing deadline without sacrificing the agency's
flexibility. A commenter stated that USCIS does not

[[Page 37524]]

explain why it did not consider the simple option of adding a stop-
clock for the small percentage of applications referred to the
Background Check Unit (BCU) and Service Center Fraud Detection
Operation (CFDO), akin to the stop-clock currently in place for
applications that require Requests for Evidence (RFEs). Just as an RFE
pauses the 30-day processing timeframe until additional documentation
is received, a new stop clock for BCU and CFDO referrals could pause
processing from the time of referral until additional information is
received from BCU and/or CFDO.
Response: While it is true that the 30-day adjudication timeframe
may be paused and restarted in certain instances, according to certain
regulations,\45\ pausing and restarting the adjudication timeframe may
not be possible in all instances to accommodate routine background
checks and fraud detection. The agency initially scans specifically for
indicators of national security concerns and those concerns are vetted
immediately without respect to the 30-day adjudication timeframe. The
vetting process, when a concern is identified, can be lengthy and
sometimes requires consultation with or referral to outside agencies
which cannot be completed within the 30-day timeline. Additional
vetting also occurs during adjudication, which may warrant
investigative action or require additional information but USCIS
disagrees that it can or should stop the adjudication timeframe to
accommodate typical adjudicative procedures rather than removing the
timeframe altogether, as this rule does. Introducing additional pause
and restart mechanisms for routine processing actions would also add a
new administrative burden for USCIS to track the pending time of a
broader swath of cases.
---------------------------------------------------------------------------

\45\ See 8 CFR 103.2(b)(10)(ii) and 8 CFR 208.7(a)(2).
---------------------------------------------------------------------------

D. Removal of 90-Day Filing Requirement

1. Necessity of Rule and DHS Rationale
Approximately 10 commenters mentioned DHS's rationale for the 90-
day filing requirement.
Comments: A couple of commenters agreed with the proposal to
rescind the 90-day deadline for EAD renewals, stating that it is more
efficient, more consistent with other regulations, and more fair to
applicants to automatically extend an EAD when the alien files a
renewal application prior to the current document's expiration. Another
agreed that eliminating the 90-day renewal requirement would mitigate
confusion and reduce pressure on those that have an EAD. Another
commenter stated that the three pre-conditions in the AC21 \46\ rule
for automatic extension eligibility will adequately ensure that renewal
applications are not automatically granted to applicants whose asylum
applications since have been denied.
---------------------------------------------------------------------------

\46\ The preconditions are that the application is properly
filed before the EAD's expiration date, based on the same category
on their EAD and based on a class of aliens eligible to apply for an
EAD notwithstanding expiration of the EAD. 8 CFR 274a.13(d)(1).
---------------------------------------------------------------------------

Response: USCIS appreciates these comments in support of removing
the 90-day renewal requirement.
Comments: A commenter supported the rule change but urged DHS to
set a timeframe for adjudicating renewals due to concerns about
applicants not receiving their EAD renewal cards by the time the
automatic extension ends.
Response: USCIS respectfully disagrees that there is a need to set
an adjudicative timeframe for adjudicating renewals. USCIS believes the
ability to apply for renewal earlier, coupled with an automatic
extension of 180 days provides adequate time for adjudication and poses
minimal risk that an applicant will experience a lapse in employment
authorization. In FY 2019, the average processing time for EAD
classifications excluding the (c)(8) applications was 127 days and the
median processing time was 100 days. While USCIS acknowledges cases may
occasionally pend longer than 180 days due to unusual facts or
circumstances or applicant-caused delays, the 180-day automatic
extension has proven to avoid lapses in employment authorization for
the majority of applicants. In FY 2017, 94.2 percent of applications
were adjudicated within 180 days, in FY 2018, 83.4 percent, in FY 2019,
81.5 percent, and as of February 29, 2020, 84 percent of non-(c)(8)
applications were adjudicated within 180 days in FY 2020.

E. Statutory and Regulatory Requirements

1. Costs and Benefits (E.O. 12866 and 13563)
k. Costs Associated With Hiring Additional Immigration Officers
Comments: Some commenters noted that the economic analysis did not
attempt to take into account the costs and benefits of hiring
additional USCIS officers to meet the 30-day timeframe. One stated that
until cost-benefit analysis of additional hiring is done, and more
detailed security protections are explained, this rule change should be
viewed as arbitrary and capricious. Another commenter said USCIS'
failure to estimate these costs is ``simply irrational'' and fails to
satisfy the most basic cost-benefit obligations the agency must meet
under the APA.
An individual commenter said the rule argues that ``the cost of
hiring and training employees to adjudicate EADs would be passed onto
asylum seekers, in the form of lost wages and higher application fees.
However, USCIS offers no direct evidence of these transferred costs. It
merely points to an accounting statement by the Office of Management
and Budget for 2017 to predict possible costs for 2020-2029.''
Response: USCIS included an extensive and plainly sufficient
analysis of the proposed rule. USCIS acknowledges that it does not
conduct a quantitative cost-benefit assessment of the costs and
benefits of hiring additional USCIS officers to meet the 30-day
timeframe. But this is because, at bottom, USCIS is unable to plan its
workload and staffing needs with the level of certainty that a binding
timeframe may require and has no way of predicting what national
security and fraud concerns may be or what procedures will be necessary
in the future.
In any case, the proposed rule did not state that hiring and
training additional employees would result in lost wages for asylum
seekers. With respect to application fees, the proposed rule stated,
among other things, that providing the resources to meet this
regulatory timeframe would require USCIS to use a significant amount of
fees that are currently paid by other benefit requestors. DHS does not
understand the remainder of the comment regarding an accounting
statement by the Office of Management and Budget for 2017. The
accounting statement in the proposed rule was prepared by DHS and is
amply supported by the surrounding text.
DHS believes USCIS requires the flexibility to devote its resources
where they are needed. Further, even if and when the funds are
available to hire additional staff and officers (which requires
increases to USCIS' operational budget and therefore possible increases
to immigration benefit fees), there is a significant lag time in the
course of posting job announcements, selecting candidates, background
investigations for selectees, onboarding, and training and mentoring
before new hires are able to adjudicate. Throughout this time, backlogs
build and resources continue to be diverted to support programs with
processing timelines. While DHS recognizes that the staffing solution
may be more long-term, the agency does

[[Page 37525]]

need an immediate solution, as resources continue to be strained. While
USCIS strives to maintain the staffing necessary to timely process all
benefit request types and continuously analyzes workload trends and
production, simply hiring more people does not provide a short term fix
and, even when new hires are working at full competency, shifting
demands and priorities continuously present new challenges that are
even more difficult to adjust to with a processing timeline in place.
As noted in the proposed rule, hiring additional staff may not shorten
adjudication timeframes in all cases because: (1) Additional time would
be required to onboard and train new employees; and (2) for certain
applications, additional time is needed to fully vet an applicant,
regardless of staffing levels.
l. Population and Effect of Rule on Processing Times
Comments: Commenters questioned USCIS's choice to adopt the 2017
level of I-765 applications as its forecast for the future number of
applications. Commenters suggested that a trendline, or a range of
estimates would be better than using one year's level as a default
prediction.
Response: In the NPRM, USCIS wrote that USCIS does not use a trend
line to forecast future projected initial I-765 applications because
various factors outside this rulemaking may result in either a decline
or, conversely, a continued rise of applications received. See 84 FR at
47162. For example, USCIS said that the number of initial I-765
applications has some correlation with changes in applications for
asylum and that the return to LIFO for processing affirmative asylum
applications may also impact initial I-765 applications. While DHS
agrees with the commenter that using one year's level as a default
prediction is not ideal, USCIS notes again that many factors affect
USCIS's ability to predict the future number of initial I-765
applications. For example, Table 8 in this final rule shows that the
number of initial I-765 receipts grew significantly from 2013 to 2017,
held approximately constant in 2018 and declined in 2019. In addition,
if finalized, the broader asylum applicant EAD rule may also affect the
number of future initial I-765 applications. This illustrates that
assuming a trend or range might not be as simple as the commenter
suggests. USCIS believes that assuming a level of applications from a
known year is a better approach than assuming an upward trendline,
especially considering the decline in 2019.
Comments: Multiple commenters questioned USCIS' reliance on the
assumption that it would return to its adjudication rate from 2017,
before the Rosario court order. Commenters stated that it is unlikely
and unrealistic to expect that USCIS would return to the pre-Rosario
scenario without a timeline to do so or staffing increases, and that in
reality, delays and costs will be more significant than estimated. An
advocacy group claimed that the pre-Rosario baseline fails to account
for ``the historic asylum application backlog'' that has increased over
the past 5 years, which according to DHS is one of the reasons cited
for eliminating the 30-day deadline.
One commenter explained that the improvement in processing times
from 2015 to 2017 reflects the pending litigation and therefore using
the FY 2017 processing numbers are inaccurate. This commenter said a
more accurate baseline would be to look to the numbers for initial I-
765 processing from before the Rosario class action was filed, which
show that in FY 2015, only 27.2 percent of initial filings were
completed within 30 days, as compared to 36.3 percent in FY 2016 and
52.4 percent in FY 2017.
Another commenter said DHS should provide the following data needed
to better judge the reasonableness of estimated processing times under
the rule: Average processing times for all EADs (with the exception of
those initial EADs filed by asylum applicants) and average processing
times for renewals of EADs based on pending asylum applications.
Response: Cost benefit analysis often involves making estimates of
future outcomes (ex ante) based on the best information available to
the agency at the time. USCIS believes FY 2017 provides a reasonable
assessment of probable processing times under the adoption of this rule
and reflects processing times that are sustainable and realistic, even
though the future processing times cannot be predicted with precision
and could vary due to any number of factors.
As of the drafting of this final rule, USCIS sees no reason why the
FY 2017 processing times are unrealistic and as such, should not be
utilized as the expected processing times after this rule is finalized.
This rule allows for increases in processing times when necessary to
identify fraud and to address other unforeseen requirements. The rule
takes into consideration the asylum application processing times during
the pre-Rosario baseline and we respectfully disagree that the
improvement in processing times from 2015 to 2017 was solely a
consequence of pending litigation. USCIS consistently evaluates and
shifts workloads and resources to meet changing circumstances, such as
increased backlogs, and legislative and policy changes. The changes in
processing times from 2015 to 2017 were likely driven by a number of
factors. USCIS chose FY 2017 because it represents the latest year
prior to the Rosario court order. While USCIS relies on 2017 processing
times, we acknowledge that if the actual processing times are longer
than assumed, then the cost of the rule would be higher than estimated.
Conversely, if processing times are shorter than assumed, then the cost
of the rule would be lower than estimated.
USCIS also believes that average processing times for all EADs
(with the exception of those initial EADs filed by asylum applicants)
and average processing times for renewals of EADs based on pending
asylum applications would not be demonstrative because there are about
50 EAD eligibility categories that USCIS processes, with a wide range
of descriptions and variations in terms of applicant type. For any
number of reasons, the asylum category could diverge from a generalized
processing rate.
Comment: A commenter noted that the proposed rule fails to consider
the significant impact on asylum applicants in defensive proceedings as
much of the analysis in the NPRM focuses on affirmative asylum
applicants only. As a result, by excluding defensive asylum EADs, the
economic analysis fails to capture the full impacts. The commenter
stated that DHS must provide further analysis germane to EAD
applications from defensive asylum applicants. In addition, the
commenter claims that the removal of the 30-day deadline will create
additional backlogs in immigration courts and create investigatory
burdens for the Internal Revenue Service (IRS) and Department of Labor
(DOL).
Response: The analysis presented in the NPRM and updated in this
final rule reflects data and information that includes receipts from
both affirmative and defensive pending asylum applicants. See 84 FR at
47161. Although Table 7--Total Annual Form I-589 Receipts Received from
Affirmative Asylum Applicants--addresses only affirmative cases, all
parts of the analysis regarding I-765 receipts include both affirmative
and defensive applicants because USCIS adjudicates all I-765
applications. Hence, the impacts do take into consideration defensive
asylum EADs.

[[Page 37526]]

As it relates to the concerns regarding investigatory burdens,
USCIS does not believe it is appropriate to assume causation between
this rule and such stated impacts. The fact that tax losses may occur
does not automatically map to more IRS investigations, just as the
possibility that the timing of some EADs may be impacted does not
causally map to increases in unauthorized work, wage theft, and
dangerous work practices.
m. Wage Bases for Labor Earnings
Comments: Several commenters expressed concern with the wage
benchmarks USCIS utilized in its analysis. One commenter claimed that
the wide range of potential lost compensation ($255.9 million to $774.8
million) was excessively wide and that it is reasonable to assume that
EAD applicants will be paid the average wage in the economy, and
implied that USCIS did not take into account demographic and
socioeconomic characteristics.
A couple of commenters stated that the rule's lower-bound estimate
of lost earnings is an understatement because it assumes an $8.25
minimum wage. The commenters stated that 28 States plus the District of
Columbia currently have minimum wages exceeding that $8.25 minimum.
Another commenter stated that calculating lost compensation by
multiplying a constant wage rate by the projected length of the delay
fails to account for the trajectory of future earnings. The commenter
said data shows that asylum seekers' wage rates do not remain constant
while they work, but rather rise the longer they have been in the work
force. The commenter also challenged DHS's treatment of the future
earnings of pending asylum applicants as unrelated to the length of
delay before they have work authorization. The commenter cited a study
by the Immigration Policy Lab at Stanford University that found a
seven-month delay in work authorization for German asylum-seekers
dragged down their economic outcomes for a decade after.
A couple of commenters challenged DHS's assertion that EAD holders
``would not have been in the labor force long and would thus not be
expected to earn relatively high wages.'' The commenters cited the
salaries of participants in the Upwardly Global program, specifying
that asylum seekers who have completed the program earn an average of
$54,875 annually, significantly higher than the national annual mean
wage of $51,960, and several program alumni earned six-figure salaries.
However, another commenter commended the assumptions regarding the
lower and upper bounds on asylee wage rates (minimum wage and national
wage, respectively), stating that, based on the New Immigrant Survey
data, they are reliable.
Response: USCIS recognizes that the wage bounds relied upon
generate a wide range of potential lost compensation. However, data are
not directly available on the earnings of asylum seekers and, faced
with uncertainty, DHS made reasonable estimates of the bounds.
In regard to the prevailing minimum wage, USCIS frequently relies
on such a lower wage for recent or new labor force entrants in its
rulemakings. We agree with commenters who note that some states and
localities have adopted their own minimum wage. For this reason, USCIS
chose to use an estimate of the prevailing minimum wage, as opposed to
the base federal minimum wage, as a lower bound estimate. In addition,
USCIS applied a multiplier of 1.46 to the $8.25 prevailing minimum wage
to adjust for benefits. Therefore, the analysis used a full
compensation cost of $12.05 ($8.25 x 1.46) to estimate the lower bound
impacts, not the $8.25 base prevailing minimum wage. Again, this
results in a lower bound wage that is higher than the actual prevailing
minimum wage, although it is unlikely that all positions would provide
such benefits.
Regarding the upper bound wage, USCIS does not have demographic or
socioeconomic characteristics about asylum applicants and thus uses the
national average wage as an upper bound estimate. USCIS agrees it is
possible for some of the workers impacted to earn wages higher than the
upper bound estimate, the national average across all occupations, just
as it is plausible that some earn less than the burdened prevailing
minimum wage. The lower and upper bounds simply represent estimates of
the range for this population's average wage.
Regarding the rule's effect on earnings over time, USCIS agrees
that earnings generally rise over time, and therefore that the earnings
of EAD holders could be larger at a point in the future. In the NPRM,
USCIS estimates that this rule will delay applicants' receipt of an EAD
for an average of 31 calendar days, or 22 working days, if processing
times returned to those achieved in FY 2017.\47\ This is much less than
the seven months the commenter cited from the study. However, USCIS
acknowledges that a 31-day delay caused by the rule could theoretically
affect the stream of applicants' future earnings but believes it is too
speculative to estimate.
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\47\ Table 10 at 84 FR 47164. 119,088 applications completed
after 30 days for a total of 3,651,326 lost calendar days and
2,655,429 working days. 3,651,326/119,088 = an average of 30.7
calendar days delayed and 2,655,429/119,088 = an average of 22.3
working days delayed.
---------------------------------------------------------------------------

n. Lost Wages and Benefits
Comments: Numerous commenters stated that asylum seekers would lose
wages and benefits as a result of delayed entry into the U.S. labor
force, which will cause an outsized, devastating amount of harm to this
already-vulnerable community. Many commenters reasoned that a lack of
income would lead to not being able to afford food, housing, emergency
services, and other benefits and assistances.
Many commenters cautioned that the rule change would cause
significant hardship to applicants and their families, including
destabilizing the financial and health situation of their children,
spouses, parents, and other family members. One commenter cited reports
indicating that a 6-month gap in employment contributes to
``microeconomic scarring, or the damage a period of unemployment
inflicts on individuals or household's [sic] future economic health
even after the spell of joblessness ends.''
Response: USCIS notes that asylum seekers statutorily cannot
receive employment authorization prior to 180 days after filing an
asylum application, but acknowledges that asylum applications that
require additional processing time will delay applicants' entry into
the U.S. labor force. USCIS does not anticipate the adoption of the
rule to result in processing times that exceed the FY 2017 pre-Rosario
processing times. This final rule allows for increases in processing
times when necessary to reduce fraud and to address other unforeseen
requirements, and variations in processing could occur due to
unforeseen events and circumstances. In the NPRM, USCIS estimated an
average delay of 31 calendar days if processing times returned to those
achieved in FY 2017. As described in the NPRM, USCIS acknowledges the
distributional impacts during this delay onto the applicant's support
network. USCIS assumes the longer an asylum applicant's EAD is delayed,
the longer the applicant's support network is providing assistance to
the applicant.
o. Impact on Support Network
Comments: Approximately 250 commenters commented on the rule's
impact on the support networks of asylum-seekers. Many commenters said
the proposed ``delayed'' issuance of

[[Page 37527]]

EADs would over-burden organizations that provide financial, housing,
legal, or other forms of assistance to asylum applicants. Multiple
commenters contended that the rule would render asylum applicants
unable to work and force them to become a public charge to welfare
programs. These commenters stated that this rule is in direct contrast
to the overall initiative of the administration and will create a
financial burden for the United States.
As it relates specifically to the costs, a commenter stated that
the rule explicitly refuses to factor into its cost analysis
``distributional impacts for those in an applicant's support network.''
Similarly, a commenter said USCIS failed to fully consider the costs of
delayed EAD adjudication to an asylum seeker's family and makes the
statement that its own workload priorities outweigh these financial
strains. Another commenter also stated that USCIS miscalculated the
cost to support networks, citing data on community groups' limited
budgets and resources.
Another commenter disagreed with USCIS' cost analysis and provided
an alternative suggestion of measurement. The commenter calculated that
the cost of providing for an individual is roughly equivalent to the
prevailing wage, which would mean the actual cost of the proposed rule
only to applicants' support networks would be at least twice that
calculated by USCIS.
Response: USCIS notes this rule does not directly regulate private
support networks or any state program. How the states or private
organizations allocate their resources is a choice by the state or
organization and is not compelled by this rule. USCIS notes that asylum
seekers statutorily cannot receive employment authorization prior to
180 days after filing an asylum application but acknowledges that
asylum applications that require additional processing time may delay
applicants' entrance into the U.S. labor force. This final rule allows
for increases in processing times when necessary to identify fraud and
to address other unforeseen requirements, and variations in processing
could occur due to unforeseen events and circumstances. In the NPRM,
USCIS estimated an average delay of 31 calendar days if processing
times return to those achieved in FY 2017. In the NPRM, USCIS
acknowledged ``the longer an asylum applicant's EAD is delayed, the
longer the applicant's support network is providing assistance to the
applicant.'' See 84 FR at 47165. The impacted social networks could
include, but are not limited to, family members and friends, relatives,
non-profit providers, nongovernmental organizations (NGOs), religious
and community based affiliations, and charities. In addition, there
could be impacts to state and local governments as well in terms of
both their burden and taxes.
In the NPRM DHS requested comment on data or sources that
demonstrate the amount or level of assistance provided to asylum
applicants who have pending EAD applications. See 84 FR at 47165. One
commenter specifically suggested that the cost of the proposed rule to
applicants' support network is roughly equivalent to the prevailing
wage. USCIS agrees that the immediate indirect impact of this rule to
an applicant's support network is likely not significantly more than
the wages and benefits the applicant would have earned without this
rule.
p. Costs Related to Socioeconomic Factors and Impacts
Comments: Numerous commenters provided feedback concerning the
impacts of the proposed rule involving loss of income to individuals
linked to groups in terms of various socioeconomic factors. For
example, multiple commenters warned that asylum seekers who are not
authorized to work would have problems obtaining healthcare and medical
treatment. Multiple commenters said that many asylum seekers will be
without healthcare due to the lack of employer provided insurance and
thus would be far more likely to skip the preventative care that keeps
them healthy which will increase contagious diseases, decrease
vaccinations, and overall negatively impact national public health.
Another commenter said state-only Medicaid would likely be the only
affordable health insurance option for asylum applicants who do not
have an EAD; however, applicants will most likely not apply for
Medicaid out of concern that receipt of any form of public assistance
will harm their ability to adjust status under the DHS Public Charge
Rule.
Several commenters said the rule would increase homelessness in
communities. One discussed research on the already limited housing
available for asylum applicants that will be negatively impacted by
this rule, citing sources. A few commenters, citing research studies
warned of the adverse short- and long-term consequences associated with
homelessness, including chronic physical and mental health, behavioral
problems, learning and cognition, academic achievement, and lifelong
adult problems.
Numerous commenters asserted that asylum seekers without an EAD due
to the rule would have difficulty obtaining important documents,
including a driver's license, state identification, and social security
number. Others said obtaining a social security card is often essential
to get into job training programs, to enroll in college, and to take
many other steps towards integration into a community. Some commenters
warned that not having a U.S. government-issued identification document
can further limit an applicant's access to transportation, banking,
education, heating and electricity, many government facilities and
school grounds, as well as hinder the ability to get married.
Multiple commenters warned that asylum seekers who are not
authorized to work and therefore lack sufficient funds as a result of
this rule would have impeded access to competent legal services and
counsel. Several commenters cited studies showing that immigrants who
are represented by legal counsel are much more likely to win their
cases than those appearing in immigration court without an attorney.
A few commenters reasoned that asylum applicants who do find pro
bono or low cost representation, are unable, without work
authorization, to pay for other costs inherent in immigration cases,
including transportation to get to and from meetings with their
attorney or even to court appearances.
A number of submissions cautioned that the above impacts would
especially be serious for vulnerable groups, such as children, and that
the rule stands to increase vulnerability to labor abuse, exploitation,
human trafficking, and violence. In addition, some claimed that
particular groups, including women, children, and lesbian, gay,
bisexual, transgender, queer (LGBTQ) and HIV-positive asylum seekers,
would face negative consequences.
Response: USCIS endeavors to process all benefits requests as
quickly as possible and this rulemaking does not change the eligibility
requirements or process by which asylum seekers obtain employment
authorization or asylum status. This rulemaking does not aim to create
undue hardships, including added stress or anxiety, on applicants for
employment authorization or to cause unnecessary delays in processing
applications. Regardless of the underlying basis for applying for
employment authorization, all applicants filing initially are subject
to some period of processing time that may delay their ability to
obtain employment or other services.
Individual state governments determine the documentary requirements
for state-issued

[[Page 37528]]

identifications. States may choose to rely on documents issued by
USCIS, but these requirements are outside USCIS' purview. This
rulemaking does not change the eligibility requirements or process by
which asylum seekers obtain employment authorization. USCIS appreciates
the concerns raised over impacts to particular groups. Furthermore,
USCIS does not question the commenters' claims that asylum seeking in
the U.S. tends to involve groups of persons with particular
socioeconomic characteristics and situations. However, USCIS is unable
to quantify the impacts to them as USCIS does not differentiate between
the particular groups in adjudicating the EAD applications. As we have
described, the rule only stands to possibly impact the timing under
which some EADs could be approved.
q. Impacts to Companies and Employers
Comments: About 50 commenters focused on the impacts presented in
the NPRM in terms of the effects on businesses and companies. Multiple
commenters asserted that this rule would negatively impact United
States employers and corporations.
Some commenters stated that, under the rule, companies that would
otherwise employ asylum seekers will either have insufficient access to
labor or bear the costs of finding alternative labor. Several
commenters said the jobs that asylum seekers fill will be extremely
hard to replace due to their skills, and because many Americans may not
want to do their jobs.
Another commenter cited unemployment data and discussed a labor
shortage, arguing that employers will be adversely affected by delaying
asylum applicants' lawful labor force participation. Also addressing a
labor shortage, another commenter cited that there were seven million
unfilled U.S. job openings in 2019 and the proposal will block these
from being filled. Multiple commenters discussed the significant labor
shortage this rule would create for industries such as health care,
agriculture, manufacturing, construction, and technology, citing
research. Another cited the percentage of the state's workforce made up
of immigrants, remarking that immigrants are a key solution to the
state's workforce challenges due to the retiring baby boomer
population.
Citing several sources, a couple of commenters described the
significant financial loss to businesses that would absorb the cost to
find and replace asylum seekers jobs. A few commenters stated that
USCIS does not adequately analyze the costs to employers in the rule
and should more accurately quantify the impacts of hiring new
employees.
Response: USCIS agrees there is a possibility a portion of the
impacts of this rule could be borne by companies that would have hired
the asylum applicants. USCIS has also reviewed the Bureau of Labor
Statistics (BLS) data and other references cited by the commenters, and
does not necessarily dispute the figures and statistics referenced for
2019. USCIS also notes that, as of November 2019, BLS data also showed
approximately 4.3 million workers are considered to be ``part time for
economic reasons,'' such as slack work or unfavorable business
conditions, inability to find full-time work, or seasonal declines in
demand.\48\ USCIS recognizes that when unemployment rates are low,
providing EADs to pending asylum applicants potentially fills an
economic need. However, even during those times USCIS must first be
sufficiently assured of applicant eligibility and ensure all background
and security checks are completed.
---------------------------------------------------------------------------

\48\ Bureau of Labor Statistics, Employment Situation News
Release--November 2019, Table A-8 Employed persons by class of
worker and part-time status, February 21, 2020. Available at https://www.bls.gov/news.release/archives/empsit_12062019.pdf.
---------------------------------------------------------------------------

Although the rule would possibly impact the timing that some asylum
applicants might experience in entering the labor force, USCIS has no
reason, as of the drafting of this final rule, to anticipate that
processing times will be vastly different (on average) than those in FY
2017 and reiterates there should not be a significant increase, barring
unforeseen variations and circumstances. In the NPRM, USCIS estimated
an average delay of 31 calendar days if processing times returned to
those achieved in FY 2017. The rule should allow sufficient time to
address national security and fraud concerns, and to maintain
technological advances in document production and identity verification
without having to add any resources.
The rule has taken into consideration that a subset of asylum
applicants' opportunity to participate in the labor market could be
delayed if their application requires additional time to process. The
analysis has also acknowledged that for the companies who are unable to
substitute the labor that would have been provided by the asylum
applicants, they could potentially experience a reduction in profit.
Comments: Some commenters said the rule would force the companies
to become less competitive by shrinking the ability to recruit a
diverse and skilled workforce. Another commenter cited research, saying
that USCIS failed to consider that asylum seekers bring a variety of
professional experience to their work that cannot be replaced by a
native workforce.
Another said the rule would make it more difficult for it to hire a
diverse and talented workforce to meet the needs of individuals with
psychiatric disabilities and require additional expenditures to recruit
otherwise authorized employees.
Response: USCIS has reviewed the sources and figures presented in
the comments, but does not see any compelling reason to assert that
this rule, which could affect the timing under which some EADs are
obtained by aliens with a pending asylum application, would hamper
companies from achieving a diverse and talented workforce.
Comments: Some commenters described the spending power of
immigrants in each state and the negative impact this rule would have
on private profits, citing research and figures. Another, citing
research, stated that asylum workers specifically fill in gaps that
make businesses more productive and stimulate industries through
entrepreneurship. Another commenter cited the NPRM's figure that the
rule will result in a loss of $775 million annually, which will affect
business profits.
Response: USCIS recognizes the research and literature concerning
immigrants being involved in innovation and entrepreneurship. However,
USCIS does not believe that this rule will reduce innovation and
entrepreneurial activity, as it only stands to possibly impact the
timing under which some asylum seekers are able to obtain an EAD. In
the NPRM, USCIS estimated an average delay of 31 calendar days if
processing times return to those achieved in FY 2017.
USCIS acknowledges that if companies cannot find reasonable
substitutes for the position the asylum applicant would have filled,
this rule will result in lost productivity and profits to companies.
Comments: A commenter commented that the rule would force asylum
applicants to work illegally, which in turn could lower labor treatment
for the United States labor force.
Response: The rule only stands to possibly impact the timing in
which an asylum applicant can obtain an EAD, where asylum applicants
are only eligible to receive employment authorization after their
asylum application has been pending 180 days.

[[Page 37529]]

Moreover, we see no reason at present that there will be an increase in
average EAD processing times, beyond what was occurring pre-Rosario,
although some EADs may take longer than average to adjudicate.
Comment: Another commenter noted that because DHS has said the rule
would have no effect on wages, it implies that in the cases where
businesses are able to find replacement labor for the position the
asylum applicant would have filled, they would be shifting workers from
elsewhere in the labor force rather than inducing people to shift away
from leisure. The commenter said that means the rule is expected to
shrink real output and that total lost wages therefore approximately
represent the total economic cost of the rule, and not merely
transfers.
Response: USCIS does not agree that under the scenario where
businesses are able to find replacement workers, this rule would shrink
real output. It is plausible that a currently unemployed (or
underemployed) worker could fill a job that would have been filled by
an asylum seeker without an increase in wages for that job. USCIS
acknowledges that in economic theory, wage rates and income are
economic variables that individuals consider when choosing between
leisure and labor, and that changes in wage rates can either decrease
or increase hours of work. This rule will have a short-term impact on
labor availability for a relatively small population. The NPRM
estimated that this rule would delay per year approximately 120,000
asylum applicants' entrance into the labor force by, on average, 31
calendar days. See 84 FR at 47164. As discussed later in this document
in the ``Labor Market Overview'' section, the U.S. labor force as of
November 2019, is approximately 164 million workers. While DHS does not
have information about the industries in which asylum applicants work,
DHS notes that applicants are not restricted to a certain industry and
therefore these short-term delays to the relatively few number of
workers are not concentrated in a single location or industry. Given
the short-term nature and relatively small number of laborers
disrupted, DHS maintains that the lost wages to asylum applicants is a
transfer from asylum applicants to other workers when companies are
able to find reasonable labor substitutes for the position the asylum
applicant would have filled. DHS acknowledges that there likely are,
however, other unquantified costs under this scenario, such as overtime
pay or opportunity costs.
r. Tax Impacts
Comments: Many commenters said this rule would negatively affect
tax revenue, with many citing USCIS projected losses. Commenters,
including individuals, a few advocacy groups, and a professional
association, raised concerns regarding the rule's impact on tax losses,
stating that these losses will negatively impact government programs
and the economy. Multiple commenters, including a federal elected
official and a few advocacy groups, discussed the loss of tax dollars
and its impact on Medicare and social security. An advocacy group said
this rule would contribute to the depletion of streets, schools, and
healthier citizens through tax dollar loss.
A commenter stated that, while estimating the lost tax revenue
based on the lost earnings estimate, the proposed rule notes, but does
not try to quantify, the significant additional lost state income tax
revenues. This commenter went on to say that rule does not mention that
asylum seekers' earnings translate into lower spending on rent, food,
and consumer goods, with the corresponding lost profits and tax
revenues that those expenditures would generate. Similarly, another
commenter said that USCIS miscalculates tax losses by only using
employment taxes, while it should be using federal, state, and local
income taxes.
Others said the rule does not account for the cost of losing tax
revenue to local governments, which they expect to be significant.
Multiple commenters, citing studies, estimated the loss in tax revenue
for different individual states as a result of the proposed rule.
Another projected that their state would suffer an estimated loss of
$1.3 to 4 million dollars on top of lost federal tax dollars if the
proposed rule was implemented and requested that USCIS withdraw the
rule change. Another said the rule would force the applicants to work
``under the table,'' thus negatively affecting the economy by violating
tax, insurance, and employment laws.
Response: USCIS appreciates the concerns of commenters and the
acknowledgement of the potential projected tax loss stated in the rule.
USCIS agrees with commenters that in circumstances in which a company
cannot transfer additional work onto current employees and cannot hire
replacement labor for the position the asylum applicant would have
filled there would be an impact to state and local tax collection. The
NPRM stated ``there may also be state and local income tax losses that
would vary according to the jurisdiction.'' See 84 FR at 47150. USCIS
notes the tax rates of the states vary widely, and many states impose
no income tax at all.\49\ It is also difficult to quantify income tax
losses because individual tax situations vary widely. The NPRM noted
that more than 44 percent of Americans pay no federal income tax. See
47 FR at 47150. Although USCIS is unable to quantify potential lost
income taxes, USCIS has provided a quantified estimate of lost
employment taxes. We were able to estimate potential lost employment
taxes since there is a uniform national rate (6.2 percent social
security and 1.45 percent Medicare for both the employee and employer,
for a total of 15.3 percent tax rate) for certain employment taxes. See
84 FR at 47150. USCIS recognizes that this quantified estimate is not
representative of all potential tax losses by federal, state, and local
governments and we made no claims this quantified estimate included all
tax losses. We continue to acknowledge the potential for additional
federal, state and local government tax loss in the scenario where a
company cannot transfer additional work onto current employees and
cannot hire replacement labor for the position the asylum applicant
would have filled.
---------------------------------------------------------------------------

\49\ See generally Turbotax, `States with the Highest and Lowest
Taxes,'' https://turbotax.intuit.com/tax-tips/fun-facts/states-with-the-highest-and-lowest-taxes/L6HPAVqSF (last visited Feb. 24, 2020).
---------------------------------------------------------------------------

s. Small Entity Impacts
Comments: A few commenters discussed the rule's impact on small
entities. Some said the proposed rule would negatively impact small
businesses and make it difficult for them to find workers. Another
commenter, citing research, said immigrants represent 25 percent of
entrepreneurs, arguing that this rule would disproportionality and
negatively affect small businesses. Another said small town economic
development is also hindered because family members who host asylum
seekers awaiting EADs must expend material support during this time of
limbo instead of starting or continuing small businesses.
Response: This rule may result in lost compensation for some
initial applicants whose EAD processing is delayed beyond the 30-day
regulatory timeframe. However, the rule does not directly regulate
employers. In the NPRM USCIS stated that 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

[[Page 37530]]

asylum applicants as a proxy for businesses' cost for lost
productivity. See 84 FR at 47156.
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 rule. This
rule will directly regulate pending asylum applicants, or individuals,
applying for work authorization. DHS cannot reliably estimate how many
small entities may be indirectly impacted as a result of this rule, but
DHS believes the number of small entities directly regulated by this
rule is zero.
t. Benefits
Comments: Approximately a dozen submissions provided comments on
the NPRM's discussion of benefits. A few stated that the lack of
quantitative benefits does not support DHS's rationale for the rule.
Some questioned whether the qualitative benefits that DHS presents were
adequately weighed against the stated millions of dollars of revenue
loss and lost wages. One commenter said the discussion of benefits
lacks details regarding how DHS would be able to achieve the rule's
goals. Another stated that the financial costs to individuals,
businesses, and the federal government in the form of lost taxes far
outweigh the financial benefits to USCIS. This commenter also said it
is also ``highly inappropriate'' for USCIS to include the end of
litigation as a benefit.
One commenter stated that USCIS failed to quantify benefits
correctly, questioning why monetary benefits of not having to hiring
additional workers is not described or estimated. This commenter also
questioned why there was no evidence provided to suggest that removing
adjudication standards would speed up the adjudication process. Another
commenter stated that the stated benefits of the rule are achievable
with a mere extension of the deadline and DHS has provided no evidence
to the contrary.
Response: By eliminating the 30-day provision, DHS stands to be
able to operate under long-term sustainable case processing times for
initial EAD applications for pending asylum applicants, to allow
sufficient time to address national security and fraud concerns, and,
to maintain technological advances in document production and identity
verification that USCIS must fulfill as a part of its core mission
within DHS. Applicants would rely on up-to-date processing times, which
provide realistic expectations and predictability of adjudication
times. While we believe we have discussed the benefits appropriately,
it is not possible to monetize them.
2. Other Statutory and Regulatory Requirements
Comments: Several commenters addressed the broad statutory and
regulatory requirements. One commenter noted the lack of analysis under
Executive Order 13771, ``Reducing Regulation and Controlling Regulatory
Costs,'' which states that any regulation must result in a net cost of
$0 or be paid for by eliminating other regulations. Another commenter
said this rule violates Executive Order 13771 because it has estimated
costs between $295 and $893 million dollars to the US economy (plus
additional tax revenue loss and uncalculated costs), with no
quantitative economic benefits estimated. The commenter said no
offsetting regulations were identified nor were subsequent offsetting
costs estimated.
Multiple commenters said that this rule does not contain an
adequate analysis of federalism concerns or the proposal's fiscal
impact. The commenters stated that USCIS did not analyze the harms to
states' programs and a substantial loss in revenue. Further, the
commenters stated that USCIS did not provide analysis required under
the Unfunded Mandates Reform Act that would require it to fully
consider reasonable alternatives to the rule.
Response: This rule has been designated a ``significant regulatory
action'' that is economically significant regulatory under section
3(f)(1) of Executive Order 12866. Accordingly, the rule has been
reviewed by the Office of Management and Budget. This rule is a
regulatory action under Executive Order 13771. DHS is not required by
law to include in this rulemaking further discussion regarding
Executive Order 13771, such as discussions regarding offsets, but DHS
intends to continue to comply with the Executive Order.
DHS did consider federalism concerns and determined that the rule
would not have a substantial direct effect on the states, on the
relationship between the Federal Government and the states, or on the
distribution of power and responsibilities among the various levels of
government, as it only removes an adjudicatory timeframe that is within
the purview and authority of USCIS and does not directly affect states.
With respect to the Unfunded Mandates Reform Act, the proposed rule
and this final rule each explain DHS's position with respect to that
Act. In addition, contrary to the commenters' position, the
alternatives analysis provisions of that Act do not apply to rules,
such as this one, that do not contain a covered Federal mandate. See 2
U.S.C. 1532(a), 1535(a). DHS nonetheless included an alternatives
analysis in the regulatory analysis portion of the proposed rule, see
84 FR at 47166 et seq., and this final rule, see infra.

F. Out of Scope

1. Comments on the Broader Asylum EAD NPRM
Comments: Approximately 10 submissions provided comments on the
broader Asylum EAD proposed rule. See 84 FR 62374 (Nov. 14, 2019). A
commenter said evaluation of the government's arguments is
``essentially impossible'' in light of their apparent inconsistency
with the anticipated ``Broader EAD NPRM'' called for by a 2019
presidential memorandum. The commenter said USCIS only briefly notes
that the rule's impact could be overstated if, as directed by the
President, the Broader EAD NPRM is implemented. The commenter stated
that USCIS simultaneously argues that the agency needs flexibility to
handle increases in EAD applications, which would be false if, under
the Broader EAD NPRM, most applicants became ineligible for EADs. The
commenter concluded that USCIS must consider the two issues--EAD
eligibility and processing timelines--jointly to determine accurately
the costs and impact of its future EAD regime. Since the proposed rule
is predicated on a situation that the agency intends to obviate by
other policy changes, the commenter said its stated reasoning is
irrational and fails to satisfy the APA.
Response: The two rules are intended to address different problems
and are therefore the subject of separate proceedings. Although the
broader asylum rule has been proposed, it is not yet final, and may not
be finalized as proposed. USCIS recognizes that this rule and the
proposed broader asylum-EAD rule could have some interaction, and to
the extent that there is interaction or overlap, DHS will address such
concerns if it finalizes the broader rule. USCIS disagrees with the
comment claim based on a reduction of EADs under the broad rule because
of increased ineligibility. USCIS would still receive many EAD filings,
although it is possible that more applications may not be approved due
to the additional and/or modified eligibility criteria proposed. In
reality, because of the added criteria under the broader

[[Page 37531]]

proposed rule, adjudication may become more complex.
2. Other Out of Scope Comments
There were just over 600 comments that we have reviewed and
determined are out of scope regrading this rule. These submissions can
be bracketed generally as: (i) General requests for reform to the
immigration system (a few of the comments specifically referred to
immigration law; USCIS notes that statutory changes are outside of
USCIS' authority. Other changes, such as specific regulatory changes
not pertaining to the issues addressed by this rulemaking, would be
outside the scope of this rulemaking); (ii) general support for
President Trump; (iii) opinions on building a wall on the Southern
border and securing American borders; (iv) opposition to illegal
immigration and all forms of immigration; (v) support only for legal
immigration; and (vi) suggestions that the government enforce
immigration laws.

IV. 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 reducing costs, of harmonizing rules, and of promoting
flexibility. Executive Order 13771 (``Reducing Regulation and
Controlling Regulatory Costs'') directs agencies to reduce regulation
and control regulatory costs and provides that ``for every one new
regulation issued, at least two prior regulations be identified for
elimination, and that the cost of planned regulations be prudently
managed and controlled through a budgeting process.''
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 regulation. This final rule is considered an
E.O. 13771 regulatory action.
1. Summary
DHS notes that the estimates from the NPRM regarding unemployment,
number of asylum applicants per year, and USCIS processing are not
currently applicable as COVID-19 has had a dramatic impact on all
three. DHS offers this analysis as a glimpse of the potential impacts
of the rule, but the analysis relies on assumptions related to a pre-
COVID economy. While future economic conditions are currently too
difficult to predict with any certainty, DHS notes that a higher
unemployment rate may result in lower costs of this rule as replacing
pending asylum applicant workers would most likely be easier to do.
Consequently, as unemployment is high, this rule is less likely to
result in a loss of productivity on behalf of companies unable to
replace forgone labor.
This rule removes the timeline to adjudicate initial EAD
applications for pending asylum applicants within 30 days and is
enacting the proposal without change. In FY 2017, prior to the Rosario
v. USCIS court order, the adjudication processing times for initial
Form I-765 under the Pending Asylum Applicant category exceeded the
regulatory set timeframe of 30 days more than half the time. However,
USCIS adjudicated approximately 78 percent of applications within 60
days. In response to the Rosario v. USCIS litigation and to comply with
the court order, USCIS continues to dedicate increased resources to
adjudication of pending asylum EAD applications. USCIS has dedicated as
many resources as practicable to these adjudications, but continues to
face an asylum application backlog, which in turn increases the numbers
of applicants eligible for pending asylum EADs. However, this
reallocation of resources is not a long-term sustainable solution
because USCIS has many competing priorities and many time-sensitive
adjudication timeframes. Reallocating resources to adjudicate asylum
EAD applications with the current regulatory-imposed timeframe in the
long-term is not sustainable due to work priorities in other product
lines. USCIS could hire more officers, but that would not immediately
and in all cases shorten adjudication timeframes because: (1)
Additional time would be required to recruit, vet, onboard and train
new employees; and, (2) for certain applications, additional time is
needed to fully vet an applicant, regardless of staffing levels.
Further, simply hiring more officers is not always feasible due to
budgetary constraints and the fact that USCIS conducts notice and
comment rulemaking to raise fees and increase revenue for such hiring
actions.
There is currently no fee for asylum applications or the
corresponding initial EAD applications, and the cost to the agency for
adjudication is covered by fees paid by other benefit requesters. As a
primary goal, USCIS seeks to adequately vet applicants and adjudicate
applications as quickly and efficiently as possible. USCIS acknowledges
this rule may delay the ability for some initial applicants whose EAD
processing is delayed beyond the 30-day regulatory timeframe to work.
The impacts of this rule are measured against a baseline. While we
have added some more recent data and information, pursuant to public
comments, the costs are benchmarked to 2017, in keeping with the NPRM.
This baseline reflects the best assessment of the way the world would
look absent this action. In the NPRM, USCIS assumed that in the absence
of this rule the baseline amount of time that USCIS would take to
adjudicate all applications would be 30 days. USCIS also assumes that
upon this rule going into effect, adjudications will align with USCIS
processing times achieved in FY 2017 (before the Rosario v. USCIS court
order). This is our best estimate of what will occur when this rule
becomes effective. USCIS believes the FY 2017 timeframes are
sustainable and USCIS expects to meet these timeframes. Therefore,
USCIS analyzed the impacts of this rule by comparing the costs and
benefits of adjudicating initial EAD applications for pending asylum
applicants within 30 days compared to the actual time it took to
adjudicate these EAD applications in FY 2017.
USCIS notes that in FY 2018, 80.3 percent of applications were
processed within 30 days and 97.5 percent were processed within 60
days. In FY 2019, the figures were 96.9 percent and 99.2 percent,
respectively. In the analysis of impacts of this rule, USCIS assumed
100 percent of adjudications happened within 30 days.\50\ However,
because actual adjudications in FYs 2018 and 2019 within the 30-day
timeframe are slightly less than the 100 percent analyzed, USCIS has
over-estimated the impacts of this rule with respect to this variable
when less than 100 percent of adjudications happen within 30 days. It
is noted that the reliance on the 100 percent rate slightly overstates
the costs.
---------------------------------------------------------------------------

\50\ The information regarding the processing of these
applications was provided by USCIS Office of Performance and Quality
(OPQ).
---------------------------------------------------------------------------

The impacts of this rule may include both distributional effects
(which are

[[Page 37532]]

transfers) and costs.\51\ The distributional impacts fall on the asylum
applicants who would be delayed in entering the U.S. labor force. The
distributional impacts (transfers) come 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, possibly in the form of additional
work hours or overtime pay. A portion of the impacts of this rule may
also be borne by companies that would have hired the asylum applicants
had they been in the labor market earlier but were unable to find
available workers. These companies may incur a cost, as they could lose
productivity and potential profits the asylum applicant would have
provided had the asylum applicant been in the labor force earlier.\52\
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. 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. 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). USCIS acknowledges that there may be additional
opportunity costs to employers such as additional search costs.
However, 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.
---------------------------------------------------------------------------

\51\ 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
\52\ The analysis accounts for delayed entry into the labor
force and does not account for the potential circumstance under
which this rule may completely foreclose an alien's entry into the
labor force. Such a possible circumstance could occur if USCIS
ultimately denies an EAD application that was pending past 30 days
due to this rule, solely because the underlying asylum application
had been denied during the pendency of the EAD application. In such
a scenario, there would be additional costs and transfer effects due
to this rule. Such costs and transfer effects are not accounted for
below. Similarly, the rule does not estimate avoided turnover costs
to the employer associated with such a scenario.
---------------------------------------------------------------------------

USCIS uses the lost compensation to asylum applicants as a measure
of the overall impact of the rule--either as distributional impacts
(transfers) or as a proxy for businesses' cost for lost productivity.
These quantified impacts do not include additional costs to businesses
for lost profits and opportunity costs or the distributional impacts
for those in an applicant's support network. The lost compensation to
asylum applicants could range from $255.88 million to $774.76 million
annually depending on the wages the asylum applicant would have earned.
The 10-year total discounted lost compensation to asylum applicants at
3 percent could range from $2.183 billion to $6.609 billion and at 7
percent could range from $1.797 billion to $5.442 billion (years 2020-
2029). USCIS recognizes that the impacts of this rule could be
overstated if the provisions in the broader asylum EAD NPRM are
finalized as proposed. Specifically, the broader asylum EAD NPRM
proposes to limit or delay eligibility for employment authorization for
certain asylum applicants. Accordingly, if the population of affected
aliens is less than estimated as a result of the broader asylum EAD
rule, the estimated impacts of this rule could be overstated because
the population affected may be lower than estimated in this rule.
In instances where a company cannot transfer additional work onto
current employees and cannot hire replacement labor for the position
the asylum applicant would have filled, USCIS acknowledges that delays
may result in tax losses to the government. It is difficult to quantify
income tax losses because individual tax situations vary widely \53\
but USCIS estimates the potential loss to other 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).\54\
With both the employee and employer not paying their respective portion
of Medicare and Social Security taxes, the total estimated tax loss for
Medicare and social security is 15.3 percent.\55\ Lost wages ranging
from $255.88 million to $774.76 million would result in employment tax
losses to the government ranging from $39.15 million to $118.54 million
annually.\56\ Adding the lost compensation to the tax losses provide
total monetized estimates of this rule that range from $275.46 million
to $834.03 million annually in instances where a company cannot hire
replacement labor for the position the asylum applicant would have
filled.\57\ Again, depending on the circumstances of the employee,
there could be additional federal income tax losses not estimated here.
There may also be state and local income tax losses that would vary
according to the jurisdiction.
---------------------------------------------------------------------------

\53\ 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.
\54\ 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.
\55\ 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.
\56\ Calculations: Lower bound lost wages $255.88 million x 15.3
percent estimated tax rate = $39.15 million. Upper bound lost wages
$774.76 million x 15.3 percent estimated tax rate = $118.54 million.
\57\ Calculation: Lower bound lost wages $255.88 million + lower
bound tax losses $19.58 million = total lower bound cost $275.46
million. Upper bound lost wages $774.76 million + upper bound tax
losses $59.27 million = total upper bound cost $834.03 million.
---------------------------------------------------------------------------

This rule will potentially result in reduced opportunity costs to
the Federal Government. Since Rosario compelled USCIS to comply with
the 30-day provision in FY 2018, USCIS has redistributed its
adjudication resources to work up to full compliance. With removing the
30-day timeframe, USCIS expects these redistributed resources could be
reallocated, potentially reducing delays in processing of other
applications and avoiding costs associated with hiring additional
employees. USCIS has not estimated these avoided costs. Additionally,
USCIS does not anticipate that removing the separate 90-day EAD filing
requirement would result in any costs to the Federal Government.
This rule will benefit USCIS by allowing it to operate under long-
term sustainable case processing times for initial EAD applications for
pending asylum applicants, to allow sufficient time to address national
security and fraud concerns, and to maintain technological advances in
document production and identify verification. Applicants will be able
to rely on up-to-date processing times, which will provide accurate
expectations of adjudication times. The technical change to remove the
90-day filing requirement is anticipated to reduce confusion regarding
EAD renewal requirements for pending asylum applicants and ensure the
regulatory text reflects current DHS policy and regulations under DHS's
final 2017 AC21 Rule.\58\
---------------------------------------------------------------------------

\58\ In the 2017 AC21 final rule, 81 FR 82398, USCIS amended 8
CFR 274a.13 to allow for the automatic extension of existing, valid
EADs for up to 180 days for renewal applicants falling within
certain EAD categories as described in the regulation and designated
on the USCIS website. See 8 CFR 274a.13(d). Among those categories
is asylum applicants. To benefit from the automatic extension, an
applicant falling within an eligible category must (1) properly file
his or her renewal request for employment authorization before its
expiration date, (2) request renewal based on the same employment
authorization category under which the expiring EAD was granted, and
(3) will continue to be authorized for employment based on his or
her status, even after the EAD expires, and is applying for renewal
under a category that does not first require USCIS to adjudicate an
underlying application, petition, or request.

---------------------------------------------------------------------------

[[Page 37533]]

Table 4 provides a detailed summary of the regulatory changes and
the expected impacts of this rule.

Table 4--Summary of Provisions and Impacts
----------------------------------------------------------------------------------------------------------------
Expected costs and
Current provision Change to provision transfers from changed Expected benefits from
provision changed provision
----------------------------------------------------------------------------------------------------------------
USCIS has a 30-day initial EAD USCIS is eliminating Quantitative: This Quantitative: Not
adjudication timeframe for the provisions for provision could delay the estimated.
applicants who have pending asylum the 30-day ability of some initial
applications. adjudication applicants to work. A
timeframe and portion of the impacts of
issuance of initial the rule would be the lost
EADs for pending compensation transferred
asylum applicants. from asylum applicants to
others currently in the
workforce, possibly in the
form of additional work
hours or overtime pay. A
portion of the impacts of
the rule would be lost
productivity costs to
companies that would have
hired asylum applicants
had they been in the labor
market, but who were
unable to find available
workers. USCIS uses the
lost compensation to
asylum applicants as a
measure of these
distributional impacts
(transfers) and as a proxy
for businesses' cost for
lost productivity. The
lost compensation due to
processing delays could
range from $255.88 million
to $774.76 million
annually. The total ten-
year discounted lost
compensation for years
2020-2029 averages $4.396
billion and $3.619 billion
at discount rates of 3 and
7 percent, respectively.
USCIS does not know the
portion of overall impacts
of this rule that are
transfers or costs. Lost
wages ranging from $255.88
million to $774.76 million
would result in employment
tax losses to the
government ranging from
$39.15 million to $118.54
million annually.
Qualitative: In cases where Qualitative: DHS would
companies cannot find be able to operate
reasonable substitutes for under long-term
the labor the asylum sustainable case
applicants would have processing times for
provided, affected initial EAD
companies would also lose applications for
profits from the lost pending asylum
productivity. In all applicants, to allow
cases, companies would sufficient time to
incur opportunity costs by address national
having to choose the next security and fraud
best alternative to concerns, and to
immediately filling the maintain
job the pending asylum technological
applicant would have advances in document
filled. There may be production and
additional opportunity identity verification
costs to employers such as without having to add
search costs. There may any resources.
also be additional
distributional impacts for
those in an applicant's
support network beyond a
minimum of 180 days--if
applicants are unable to
work legally, they may
need to rely on resources
from family members,
friends, non-profits, or
government entities for
support.
DHS notes that the This rule would result
estimates from the NPRM in reduced
regarding unemployment, opportunity costs to
number of asylum the Federal
applicants per year, and Government. USCIS may
USCIS processing are not also be able to
currently applicable as reallocate the
COVID-19 has had a resources it
dramatic impact on all redistributed to
three. DHS offers this comply with the 30-
analysis as a glimpse of day provision,
the potential impacts of potentially reducing
the rule, but the analysis delays in processing
relies on assumptions of other applications
related to a pre-COVID and avoiding costs
economy. While future associated with
economic conditions are hiring additional
currently too difficult to employees.
predict with any
certainty, DHS notes that
a higher unemployment rate
may result in lower costs
of this rule as replacing
pending asylum applicant
workers would most likely
be easier to do.
Consequently, as
unemployment is high, this
rule is less likely to
result in a loss of
productivity on behalf of
companies unable to
replace forgone labor.
Applicants can currently submit a USCIS is removing the Quantitative: None......... Quantitative: None.
renewal EAD application 90 days 90-day submission Qualitative: None.......... Qualitative:
before the expiration of their requirement for Applicants--
current EAD. renewal EAD Reduces
applications. confusion regarding
EAD renewal
requirements. Some
confusion may
nonetheless remain if
applicants consult
outdated versions of
regulations or
inapplicable DOJ
regulations.
DHS/USCIS--
The
regulations are being
updated to match
those of other EAD
categories.
----------------------------------------------------------------------------------------------------------------

[[Page 37534]]

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 any
reasonable labor substitutes for the positions the asylum applicants
would have filled, then $774.76 million is the estimated maximum
monetized cost of the rule 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 $118.54
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 this rule and are summarized in Table
5 below.

Table 5--Summary of Range of Monetized Impacts
--------------------------------------------------------------------------------------------------------------------------------------------------------
Scenario: No replacement labor Scenario: All asylum
found for asylum applicants applicants replaced with other Primary (half
Category Description -------------------------------- workers of the highest
-------------------------------- high for each
Low wage High wage Low wage High wage row)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cost...................................... Lost compensation used as $255.88 $774.76 $0.00 $0.00 $387.38
proxy for lost productivity
to companies.
Transfer.................................. Compensation transferred 0.00 0.00 255.88 774.76 387.38
from asylum applicants to
other workers.
Transfer.................................. Lost employment taxes paid 39.15 118.54 0.00 0.00 59.27
to the Federal Government.
--------------------------------------------------------------------------------------------------------------------------------------------------------

As required by OMB Circular A-4, Table 6 presents the prepared A-4
accounting statement showing the costs and transfers associated with
this regulation. For the purposes of the A-4 accounting statement
below, USCIS uses the mid-point as the primary estimate for both costs
and transfers because the total monetized impact of the rule from lost
compensation cannot exceed $774.76 million and as described, USCIS is
unable to apportion the impacts between costs and transfers. Likewise,
USCIS uses a mid-point for the reduction in employment tax transfers
from companies and employees to the Federal Government when companies
are unable to easily find replacement workers. USCIS notes that there
may be some un-monetized costs such as additional opportunity costs to
employers that would not be captured in these monetized estimates.

Table 6--OMB A-4-Accounting Statement
[$ millions, 2017]
[Period of analysis: 2019-2028]
--------------------------------------------------------------------------------------------------------------------------------------------------------

--------------------------------------------------------------------------------------------------------------------------------------------------------
Category Primary estimate Minimum Maximum Source citation (RIA, preamble, etc.)
estimate estimate
--------------------------------------------------------------------------------------------------------------------------------------------------------
Benefits:
Monetized Benefits...................... (7%) N/A N/A N/A RIA.
(3%) N/A N/A N/A RIA.
Annualized quantified, but un-monetized, .............. 0 0 0 RIA.
benefits.
----------------------------------------------------------------
Unquantified benefits....................... Applicants would benefit from reduced confusion over renewal RIA.
requirements. DHS would be able to operate under sustainable
case processing times for initial EAD applications for pending
asylum applicants, to allow sufficient time to address
national security and fraud concerns, and to maintain
technological advances in document production and identity
verification
--------------------------------------------------------------------------------------------------------------------------------------------------------
Costs:
Annualized monetized costs (discount (7%) $387.38 $0 $774.76 RIA.
rate in parenthesis). (3%) $387.38 $0 $774.76 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 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 additional search costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Transfers:
Annualized monetized transfers: ``on (7%) $0 $0 $0 RIA.
budget''.

[[Page 37535]]

(3%) $0 $0 $0
----------------------------------------------------------------
From whom to whom?...................... N/A N/A.
----------------------------------------------------------------
Annualized monetized transfers: (7%) $387.38 $0 $774.76 RIA.
Compensation. (3%) $387.38 $0 $774.76
----------------------------------------------------------------
From whom to whom?...................... From asylum applicants to workers in the U.S. labor force or RIA.
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
----------------------------------------------------------------
Annualized monetized transfers: Taxes... (7%) $59.27 $0 $118.54 RIA.
(3%) $59.27 $0 $118.54
----------------------------------------------------------------
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
--------------------------------------------------------------------------------------------------------------------------------------------------------
Category Effects Source citation
(RIA, preamble, etc.)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Effects on state, local, and/or tribal None; no significant impacts to national labor force or to the RIA.
governments. labor force of individual states is expected. Possible loss of
tax revenue
Effects on small businesses................. None RFA.
Effects on wages............................ None RIA.
Effects on growth........................... None RIA.
--------------------------------------------------------------------------------------------------------------------------------------------------------

2. Background and Purpose of the Final Rule
Aliens who are arriving or physically present in the United States
generally may apply for asylum in the United States irrespective of
their immigration status. To establish eligibility for asylum, an
applicant must demonstrate, among other things, that they have suffered
past persecution or have a well-founded fear of future persecution on
account of race, religion, nationality, membership in a particular
social group, or political opinion. Applicants, with limited
exceptions, are required to apply for asylum within one year of their
last arrival in the United States. USCIS does not currently charge
filing fees for certain humanitarian benefits, including asylum
applications and applications concurrently filed with asylum
applications. Asylum applicants whose cases remain pending without a
decision for at least 150 days are eligible to apply for employment
authorization, unless any delays are caused by the applicant (such as a
request to reschedule an interview). 8 CFR 208.7, 274a.12(c)(8),
274a.13(a)(2). Applicants who are granted asylum (``asylees'') may work
immediately. See INA section 208(c)(1)(B), 8 U.S.C. 1158(c)(1)(B). An
asylee may choose to obtain an EAD for convenience or identification
purposes, but this documentation is not necessary for an asylee to
work. 8 CFR 274a.12(a)(5).
Currently, DHS regulations at 8 CFR 208.7(a)(1) provide that USCIS
adjudicates a Form I-765 within 30 days of receiving a properly filed
application from a pending asylum applicant. Asylum applicants must
wait 150 days from the time of filing the asylum application before
they can file a Form I-765. USCIS cannot grant employment authorization
until the applicant has accumulated a total of 180 days, not including
any delays caused or requested by the applicant, meaning the
applicant's asylum case has been pending for a total of 180 days. 8 CFR
208.7(a)(1)-(2). This is known as the 180-Day Asylum EAD clock.\59\ If
USCIS approves the Form I-765, USCIS mails an EAD according to the
mailing preferences indicated by the applicant. If USCIS denies the
Form I-765, the agency sends a written notice to the applicant
explaining the basis for denial.
---------------------------------------------------------------------------

\59\ See The 180-Day Asylum EAD Clock Notice (May 9, 2017)
https://www.uscis.gov/sites/default/files/USCIS/Humanitarian/Refugees%20%26%20Asylum/Asylum/Asylum_Clock_Joint_Notice_-_revised_05-10-2017.pdf.
---------------------------------------------------------------------------

However, if USCIS requires additional documentation from the
applicant before a decision can be made, USCIS sends a request for
evidence (RFE) and the 30-day processing timeframe for processing a
Form I-765 is paused until additional documentation is received. Once
USCIS receives all requested information in response to the RFE, the
30-day timeframe continues from the point at which it stopped. In some
instances, applications may require additional vetting by the
Background Check Unit (BCU) and the Center Fraud Detection Operations
(CFDO), for instance, to verify an applicant's identity. The 30-day
timeframe does not stop in these situations, though these cases may
take longer than 30 days to process. USCIS would make a decision only
after all eligibility and background checks relating to the EAD
application have been completed.
DHS considers the 30-day adjudication timeframe to be outdated, as
it no longer reflects current DHS operational realities. In the 20-plus
years since the timeframe was established, there has been a shift to
centralized processing as well as increased security measures, such as
the creation of tamper-resistant EAD cards. These measures reduce
opportunities for fraud but can require additional processing time,
especially as filing volumes remain high. By eliminating the 30-day
provision, DHS will be able to maintain accurate case processing times
for initial EAD applications for pending asylum applicants since, prior
to the Rosario v. USCIS court order, it was not meeting the 30-day
regulatory timeframe most of the time (53 percent), to address national
security and fraud concerns for those applications that require
additional vetting through RFEs or referrals to BCU and/or CFDO, and to

[[Page 37536]]

maintain technological advances in document production and identity
verification that USCIS must fulfill as a part of its core mission
within DHS such as the centralized production and creation of tamper-
resistant cards.
The need for this final rule results in part from the resource
burden associated with adjudicating, within the 30-day adjudication
timeframe, a large number of initial Forms I-765 under the Pending
Asylum Applicant category. The large number of applications results
from a range of factors, such as recent growth in USCIS' asylum
backlog, which USCIS continues to address through a number of different
measures.
For example, in an effort to stem the growth of the agency's asylum
backlog, USCIS returned to processing affirmative asylum applications
on a ``last in, first out'' (LIFO) basis. Starting January 29, 2018,
USCIS began prioritizing the most recently filed affirmative asylum
applications when scheduling asylum interviews. The former INS first
established this interview scheduling approach as part of asylum
reforms implemented in January 1995 and it remained in place until
December 2014. USCIS has returned to this approach in order to deter
aliens from using asylum backlogs solely as a means to obtain
employment authorization by filing frivolous, fraudulent or otherwise
non-meritorious asylum applications. Giving priority to recent filings
allows USCIS to promptly adjudicate asylum applications.\60\
---------------------------------------------------------------------------

\60\ USCIS now schedules asylum interviews based on three
priority levels. First priority: Applications scheduled for an
interview, but the interview had to be rescheduled at the
applicant's request or the needs of USCIS. Second priority:
Applications pending 21 days or less. Third priority: All other
pending affirmative asylum applications, which will be scheduled for
interviews starting with newer filings and working back towards
older filings. See Affirmative Asylum Interview Scheduling (Jan. 26,
2018), available at https://www.uscis.gov/humanitarian/refugees-asylum/asylum/affirmative-asylum-interview-scheduling.
---------------------------------------------------------------------------

Another possible effect of reinstating LIFO is that in the future,
fewer affirmative asylum applications would remain pending before USCIS
for 150 days. However, the majority of asylum applications filed with
USCIS have been referred to the Department of Justice Executive Office
for Immigration Review (EOIR) for consideration of the asylum
application by an immigration judge. In FY 2017, 53 percent of asylum
filings processed by USCIS resulted in a referral to an immigration
judge.\61\ These applicants may be eligible to apply for an initial EAD
under the (c)(8) category once the Asylum EAD Clock reaches 150 days.
---------------------------------------------------------------------------

\61\ See Notes from Previous Engagements, Asylum Division
Quarterly Stakeholder Meeting (Feb. 7, May 2, Aug. 11, and Nov. 3,
2017), https://www.uscis.gov/outreach/notes-previous-engagements?topic_id=9213&field_release_date_value%5Bvalue%5D%5Bmonth%5D=&field_release_date_value_1%5Bvalue%5D%5Byear%5D=&multiple=&items_per_page=10.
---------------------------------------------------------------------------

In the end, however, USCIS cannot predict with certainty how LIFO
and other administrative measures, as well as external factors such as
immigration court backlogs and changes in country conditions, will
ultimately affect total application volumes and the attendant resource
burdens on USCIS. In addition, in light of the need to accommodate
existing vetting requirements and to maintain flexibility should trends
change, USCIS believes that even if it could reliably project a
reduction in total application volume, such reduction would not, on its
own, serve as a sufficient basis to leave the 30-day adjudication
timeframe in place.
Finally, once an EAD is approved under the (c)(8) Pending Asylum
Applicant category, it is currently valid for two years and requires
renewal to extend an applicant's employment authorization if the
underlying asylum application remains pending.\62\ Currently, DHS
regulations at 8 CFR 208.7(d) require that USCIS must receive renewal
applications at least 90 days prior to the employment authorization
expiration.\63\ Removing the 90-day requirement will bring 8 CFR
208.7(d) in line with 8 CFR 274a.13(d), as amended in 2017; such
amendments automatically extend renewal applications for up to 180
days. Additionally, under the 2017 AC21 Rule, applicants eligible for
employment authorization can have the validity of their EADs
automatically extended for up to 180 days from the document's
expiration date, if they (1) file before its expiration date, (2) are
requesting renewal based on the same employment authorization category
under which the expiring EAD was granted, and (3) will continue to be
authorized for employment based on their status, even after the EAD
expires and are applying for renewal under a category that does not
first require USCIS to adjudicate an underlying application, petition,
or request.
---------------------------------------------------------------------------

\62\ EADs issued prior to October 5, 2016 had a validity period
of one year. See USCIS Increases Validity of Work Permits to Two
Years for Asylum Applicants (Oct. 6, 2016), available at https://www.uscis.gov/news/alerts/uscis-increases-validity-work-permits-two-years-asylum-applicants.
\63\ For renewal applications, a properly filed application for
pending asylum applicants is one that is complete, signed,
accompanied by all necessary documentation and the current filing
fee of $410.
---------------------------------------------------------------------------

3. Population
In this section, we have updated filing volumes and some additional
metrics to capture FY 2018 and 2019 data and information. However,
consistent with the NPRM, the costs and analysis is still benchmarked
to FY 2017 processing times (before the Rosario v. USCIS court order).
In FY 2019, USCIS received a total of 96,861 affirmative filings of
Form I-589 applications for asylum. The number of total receipts for
asylum applicants rose consistently from FY 2013 to FY 2017, before
declining in FY 2018 and FY 2019 (Table 7). As the number of asylum
applicants increases, the backlog continues to grow,\64\ resulting in a
greater number of people who are eligible to apply for EADs while they
await adjudication of their asylum application.
---------------------------------------------------------------------------

\64\ As of June 2018, the asylum backlog was still increasing,
but its growth rate has begun to stabilize.

Table 7--Total Annual Affirmative Form I-589 Receipts Received From
Asylum Applicants \65\
------------------------------------------------------------------------
Fiscal year Total receipts
------------------------------------------------------------------------
2013................................................. 44,453
2014................................................. 56,912
2015................................................. 84,236
2016................................................. 115,888
2017................................................. 142,760
2018................................................. 106,041
2019................................................. 96,861
------------------------------------------------------------------------
Source: All USCIS Application and Petition Form Types, All Form Types
Performance Data (Fiscal Year 2013-2019, 4th Qtr), https://www.uscis.gov/tools/reports-studies/immigration-forms-data/data-set-all-uscis-application-and-petition-form-types.

This larger number of Form I-765 filings linked to asylum claims
has strained resources and led to longer processing times for
adjudication. Table 8 shows the total, initial, and renewal
applications received for Form I-765 for asylum applicants for FY 2013
to FY 2019. \66\
---------------------------------------------------------------------------

\65\ These numbers only address the affirmative asylum
applications that fall under the jurisdiction of USCIS' Asylum
Division. Defensive asylum applications, filed with the Department
of Justice's Executive Office for Immigration Review (EOIR) are also
eligible for (c)(8) EADs. There is an ongoing backlog of pending
defensive asylum cases at EOIR, which has approximately 650,000
cases pending. See Memorandum from Jeff Sessions, Attorney General,
Renewing Our Commitment to the Timely and Efficient Adjudication of
Immigration Cases to Serve the National Interest (Dec. 5, 2017). The
defensive asylum backlog at EOIR also contributes to an increase in
both initial and renewal (c)(8) EAD applications.
\66\ Since LIFO was reinstated at the end of January 2018, there
is not yet enough data currently available to determine the impact
on asylum applications or initial EAD applications.

[[Page 37537]]

Table 8--Total Annual Form I-765 Receipts Received From Pending Asylum Applicants
----------------------------------------------------------------------------------------------------------------
Total receipts Total initial Total renewal
Fiscal year * receipts receipts
----------------------------------------------------------------------------------------------------------------
2013............................................................ 78,882 41,021 37,861
2014............................................................ 109,272 62,169 47,103
2015............................................................ 178,589 106,030 72,559
2016............................................................ 298,580 169,970 128,610
2017............................................................ 474,037 261,782 212,255
2018............................................................ 324,991 262,965 62,026
2019............................................................ 551,226 216,038 335,188
----------------------------------------------------------------------------------------------------------------
Source: File Tracking Data, USCIS, Office of Performance and Quality
* Total receipts do not include replacement receipts.
Note: This data includes receipts received from both affirmative and defensive pending asylum applicants.

In FY 2019, USCIS received a total of 551,226 (non-replacement)
applications for Form I-765 from pending asylum applicants, with less
than half as initial applications (216,038 or 39.2 percent). There were
335,188 renewal applications (60.8 percent) in FY 2019. For this
analysis, USCIS does not use a trend line to forecast future projected
applications because various factors outside of this rulemaking may
result in either a decline or, conversely, a continued rise of
applications received. For example, while the number of initial
applicants and renewals rose sharply during the last five years,
peaking in 2017, DHS assumes the increase in initial EAD applications
has some correlation with the high volumes of asylum applications in
the same years. As pending asylum applications increased, the length of
time it takes to adjudicate those applications increases, and it is
reasonable to assume that the number of applicants who seek employment
authorization on the basis of that underlying asylum application would
also rise. On the other hand, initial EAD applications may decline. For
instance, USCIS' return to a LIFO interview schedule to process
affirmative asylum applications, may help stem the growth of the
agency's asylum backlog, and may result in fewer pending asylum
applicants applying for an EAD. But USCIS cannot predict such an
outcome with certainty at this time. Therefore, since DHS anticipates
similar outcomes to those achieved in FY 2017, USCIS anticipates
receiving approximately 474,037 Form I-765 applications annually from
pending asylum applicants, with an estimated 261,782 initial
applications and 212,255 renewal applications.
In order to analyze USCIS processing times for Form I-765, USCIS
obtained data on completed initial applications, which included the
length of time to complete adjudication and information on
investigative factors that may prolong the adjudication process. Table
9 differentiates between initial applications that USCIS adjudicated
within the 30-day timeframe, and those that it did not. Specifically,
Table 9A presents the data for FY 2017, reflecting the anticipated
outcome of this rule, while Table 9B presents information for 2019,
which reflect current processing times under the Rosario v. USCIS court
order. The table also includes the initial applications that were
adjudicated within a 60-day timeframe, along with the corresponding
initial applications that required additional vetting. This additional
vetting includes the issuance of RFEs and referrals for identity
verification by the BCU and the CFDO, which can cause delays in
processing. DHS notes that the 30-day timeframe pauses for RFEs but
does not pause for BCU or CFDO checks, nor any referrals to outside
agencies that may be needed. Delays could also be caused by rescheduled
fingerprinting.

Table 9A--Percentage of Completions for Initial Form I-765 for Pending Asylum Applicants in FY 2017
----------------------------------------------------------------------------------------------------------------
No additional vetting required Additional vetting required
(percent) (percent)
Number of days the initial ---------------------------------------------------------------- Total
application was pending Approved Approved (percent)
initial Denied initial initial Denied initial
applications applications applications applications
----------------------------------------------------------------------------------------------------------------
0-30............................ 42 2 3 0 47
31-60........................... 22 2 6 1 31
Over 60......................... 12 2 6 2 22
-------------------------------------------------------------------------------
Total (Percent)............. 76 5 16 3 100
----------------------------------------------------------------------------------------------------------------

Table 9B--Percentage of Completions for Initial Form I-765 for Pending Asylum Applicants in FY 2019
----------------------------------------------------------------------------------------------------------------
No additional vetting required Additional vetting required
(percent) (percent)
Number of days the initial ---------------------------------------------------------------- Total
application was pending Approved Approved Denied (percent)
initial Denied initial initial initial
applications applications applications applications
----------------------------------------------------------------------------------------------------------------
0-30............................ 67 14 9 3 93
31-60........................... 1 0 2 0 3

[[Page 37538]]

Over 60......................... 1 0 2 1 4
-------------------------------------------------------------------------------
Total (Percent)............. 69 14 13 5 100
----------------------------------------------------------------------------------------------------------------
Source: File tracking data, USCIS, Office of Performance and Quality.
Note: Additional vetting includes the applications issued an RFE, referred to BCU/CFDO and both.

In FY 2019, USCIS adjudicated within the 30-day timeframe the
majority (93 percent) \67\ of all initial Form I-765 applications
received. USCIS approved within 30 days 67 percent \68\ of the initial
applications received and denied 14 percent that did not require any
additional vetting. Of the 76 percent of approved applications, only 9
percent required additional vetting, while 67 percent did not. USCIS'
completion rate within a 60-day timeframe increased to 96 percent
overall, with 79 percent \69\ of the 96 percent of applications
approved and 17 percent \70\ of the 96 percent of applications denied.
Only 14 percent \71\ of the 96 percent of applications adjudicated
within 60 days required additional vetting, while the majority of
applications did not (82 percent of the 96 percent of applications
adjudicated within 60 days).\72\
---------------------------------------------------------------------------

\67\ This figure is rounded from 92.8 percent. USCIS notes that
earlier in the preamble, we conveyed that the FY 2019 processing
rate for-under 30 days was 96.9 percent. The difference is due to
the time deductions associated with requests for evidence (RFE). The
latter, lower figure excludes RFE time deductions. A similar
adjustment was made for the NPRM analysis benchmarked to FY 2017,
which is what we base the costs on.
\68\ Calculation of 30-day Approved: 67 (No Additional Vetting
Percent Approved 0--30 days) + 9 (Additional Vetting Percent
Approved 0--30 days) = 76 percent.
\69\ Calculation of 60-day Approved: 67 (No Additional Vetting
Percent Approved 0-30 days) + 1 (No Additional Vetting Percent
Approved 31-60 days) + 9 (Additional Vetting Percent Approved 0-30
days) + 2 (Additional Vetting Percent Approved 31-60 days) = 79
percent.
\70\ Calculation of 60-day Denied: 14 (No Additional Vetting
Percent Denied 0-30 days) + 0 (No Additional Vetting Percent Denied
31-60 days) + 3 (Additional Vetting Percent Denied 0-30 days) + 0
(Additional Vetting Percent Denied 31-60 days) = 17 percent.
\71\ Calculation of 60-day Additional Vetting: 9 (Additional
Vetting Percent Approved 0-30 days) + 2 (Additional Vetting Percent
Approved 31-60 days) + 0 (Additional Vetting Percent Denied 31-60
days) + 3 (Additional Vetting Percent Denied 0-30 days) = 14
percent.
\72\ Calculation of 60-day No Additional Vetting: 67 (No
Additional Vetting Percent Approved 0-30 days) + 1 (No Additional
Vetting Percent Approved 31-60 days) + 14 (No Additional Vetting
Percent Denied 0-30 days) + 0 (No Additional Vetting Percent Denied
31-60 days) = 82 percent.
---------------------------------------------------------------------------

By comparison, in FY 2017, the anticipated outcome of this rule,
USCIS adjudicated within the 30-day timeframe just under half (47
percent) of all initial Form I-765 applications received. USCIS
approved within 30 days 45 percent \73\ of the initial applications
received and denied 2 percent that did not require any additional
vetting. Among the approved applications, only 3 percent of the total
required additional vetting, while 42 percent did not. USCIS'
completion rate within a 60-day timeframe increased to 78 percent
overall, with 73 percent \74\ of applications approved and 5 percent
\75\ denied. Only 10 percent \76\ of applications adjudicated within 60
days required additional vetting, while the majority of approved
applications did not (68 percent of the total).\77\
---------------------------------------------------------------------------

\73\ Calculation of 30-day Approved: 42 (No Additional Vetting
Percent Approved 0-30 days) + 3 (Additional Vetting Percent Approved
0--30 days) = 45 percent.
\74\ Calculation of 60-day Approved: 42 (No Additional Vetting
Percent Approved 0-30 days) + 22 (No Additional Vetting Percent
Approved 31-60 days) + 3 (Additional Vetting Percent Approved 0-30
days) + 6 (Additional Vetting Percent Approved 31-60 days) = 73
percent.
\75\ Calculation of 60-day Denied: 2 (No Additional Vetting
Percent Denied 0--30 days) + 2 (No Additional Vetting Percent Denied
31-60 days) + 1 (Additional Vetting Percent Denied 31ndash;60 days)
= 5 percent.
\76\ Calculation of 60-day Additional Vetting: 3 (Additional
Vetting Percent Approved 0-30 days) + 6 (Additional Vetting Percent
Approved 31-60 days) + 1 (Additional Vetting Percent Denied 31-60
days) = 10 percent.
\77\ Calculation of 60-day No Additional Vetting: 42 (No
Additional Vetting Percent Approved 0-30 days) + 22 (No Additional
Vetting Percent Approved 31-60 days) + 2 (No Additional Vetting
Percent Denied 0-30 days) + 2 (No Additional Vetting Percent Denied
31-60 days) = 68 percent.
---------------------------------------------------------------------------

In FY 2017, prior to the Rosario v. USCIS court order, the majority
of applications (53 percent) did not meet the required 30-day
adjudication timeframe. In fact, it took up to 60 days for USCIS to
adjudicate the majority of applications. For applications that require
additional vetting, most applications took more than 30 days to
adjudicate as well. ``Additional vetting'' cases include those where an
RFE is issued, which pauses the regulatory processing time. The
findings in Table 9A underscore that while additional vetting and other
delays may contribute to increased processing times, it may not be the
only reason processing times have increased. It is likely that the
increasing number of initial EAD applications is due to historically-
high asylum receipt numbers in recent years, the asylum interview
backlogs, and updated operations as outlined in the background of this
rule.
With the removal of the 30-day adjudication timeframe, DHS
anticipates similar outcomes to those achieved in FY 2017. DHS's
primary goal is to adequately vet applicants and adjudicate cases as
quickly and efficiently as possible.
4. Transfers, Costs, and Benefits of the Rule
a. Transfers and Costs
This final rule removes the 30-day adjudication timeframe in order
to better align with DHS processing times achieved in FY 2017. USCIS
recognizes that removing the 30-day regulatory timeframe could
potentially result in longer processing times for some applicants and
in such situations, this could lead to potential delays in employment
authorization for some initial EAD applicants. As described above,
these delays would have both distributional effects (which are
transfers) and costs. Any delay beyond the regulatory 30-day timeframe
would prevent an EAD applicant, if his or her application were
approved, from earning wages and other benefits until authorization is
obtained. A portion of this lost compensation would be a distributional
impact and considered a transfer from asylum applicants to

[[Page 37539]]

others that are currently in the U.S. labor force, possibly in the form
of additional work hours or overtime pay. In cases where companies that
would have hired asylum applicants had they been in the labor market
earlier are not able to find available workers, the lost compensation
to asylum workers would be considered a proxy for the cost of lost
productivity to those companies. However, USCIS does not know the
portion of the overall impacts of this rule that are transfers or
costs. One reason USCIS is unable to apportion these impacts is because
the industries in which asylum applicants will work with their
employment authorization is unknown; companies' responses to such a
situation will vary depending on the industry and location of the
company (for example, truck drivers are limited to the number of
overtime hours they can work). Additional uncertainty in how companies
will respond exists because while the official unemployment rate was
low as of November 2019, there is still evidence of some labor market
slack.\78\ While USCIS is unable to apportion these impacts between
transfers and costs, USCIS does use the lost compensation to asylum
applicants, as described below, as a measure of these total impacts.
---------------------------------------------------------------------------

\78\ See Bureau of Labor Statistics, Employment Situation News
Release--November 2019, Table A-8 Employed persons by class of
worker and part-time status, February 21, 2020. Available at https://www.bls.gov/news.release/archives/empsit_12062019.pdf.
---------------------------------------------------------------------------

In FY 2017, the processing times for initial Form I-765 filings
under the Pending Asylum Applicant category exceeded the regulatory set
timeframe of 30 days more than half the time. However, USCIS
adjudicated approximately 78 percent of applications within 60 days. In
FY 2019, USCIS adjudicated approximately 96 percent of applications
within 60 days. To estimate lost wages and other benefits, USCIS used
FY 2017 daily processing time data as compared to the baseline, which
assumes 100 percent of applications are adjudicated within 30 days. In
FY 2017, USCIS adjudicated 119,088 approved applications \79\ past the
regulatory set timeframe.
---------------------------------------------------------------------------

\79\ In FY 2017, USCIS adjudicated 15,860 denied (c)(8) EAD
applications past the regulatory set timeframe. Since denied
applicants would not obtain work authorization and would not lose
working days, this population is not impacted by this rule and are
therefore not included in the analysis for lost compensation.
---------------------------------------------------------------------------

USCIS recognizes that pending asylum EAD applicants do not
currently participate in the U.S. labor market, and, as a result, are
not represented in national average wage calculations. Further, USCIS
recognizes that pending asylum applicants who obtain an EAD are not
limited to certain types of employment or occupations nor does USCIS
track the type of employment applicants obtain. Because the Form I-765
for the (c)(8) category does not include or legally require, at the
initial or renewal stage, any data on employment, and, since it does
not involve an associated labor condition application, DHS has no
information on wages, occupations, industries, or businesses that may
involve such workers.
In some DHS rulemakings, the estimates of distributional impacts
and time-related opportunity costs are linked to the federal minimum
wage for new entrants to the labor force. 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 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, even within states, there are multiple tiers.\80\ 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.\81\ DHS also does not
rule out the possibility that some portion of the population might earn
wages at the average level for all occupations. 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 \82\ to take into consideration the variance in
average wages across states as an upper bound. USCIS's lower and upper
bounds represent estimates of the range for this population's average
wage, understanding that it is possible that some workers may earn more
than the average wage across all occupations, and, that some may earn
lower than the prevailing minimum wage, such as federal minimum wage.
---------------------------------------------------------------------------

\80\ See When it comes to the minimum wage, we cannot just
`leave it to the states' (November 10, 2016) 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.
\81\ Calculations (1) for prevailing minimum wage: $8.25 hourly
wage x benefits burden of 1.46 = $12.05; for federal minimum wage:
$7.25 hourly wage x benefits burden of 1.46 = $10.59 See Minimum
Wage, U.S. Department of Labor available at https://www.dol.gov/general/topic/wages/minimumwage; (2) (($12.05 wage-$10.59 wage)/
$10.59)) wage = .1378, which rounded and multiplied by 100 = 13.8
percent.
\82\ The wage update in April 2018 reflects the 2017 average for
all occupations nationally. The data are found at the BLS
Occupational Employment and Wage Estimates, United States, found at:
https://www.bls.gov/oes/2018/may/oes_nat.htm#00-0000.
---------------------------------------------------------------------------

In order to estimate the fully loaded wage rates, to include
benefits such as paid leave, insurance, and retirement using BLS data,
USCIS calculated a benefits-to-wage multiplier of 1.46 \83\ and
multiplied it by the prevailing minimum hourly wage rate. The fully
loaded per hour wage rate for someone earning the prevailing minimum
wage rate is $12.05 \84\ and $36.47 \85\ for someone earning the
average wage rate. Multiplying these fully loaded hourly wage rates by
8 to reflect an assumed 8-hour workday produces daily wage rates of
$96.36 and $291.77,\86\ respectively. USCIS also assumes that EAD
holders would work 5 out of every 7 days, or an average of 21 days per
month.
---------------------------------------------------------------------------

\83\ The benefits-to-wage multiplier is calculated by the Bureau
of Labor Statistics (BLS) as follows: ($36.32 Total Employee
Compensation per hour)/($24.91 Wages and Salaries per hour) = 1.458
(1.46 rounded). See U.S. Department of Labor, Bureau of Labor
Statistics, Economic News Release, 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 (April 2019), available at https://www.bls.gov/news.release/archives/ecec_03192019.pdf.
\84\ Calculation: $8.25 x 1.46 = $12.05 per hour.
\85\ Calculation: $24.98 x 1.46 = $36.47 per hour.
\86\ Calculations: $12.05 per hour x 8 hours = $96.36 per day;
$36.47 per hour x 8 hours = $291.77 per day.
---------------------------------------------------------------------------

In the proposed rule, using FY 2017 data, USCIS estimated that the
119,088 approved EAD applicants experienced an estimated total
2,655,429 lost working days, and lost compensation could range from
$255.88 million to $774.76 million.\87\ USCIS understands that not all
EAD recipients would work in minimum or average wage occupations, but
provides these estimates as possible lower and upper bounds for
approved applicants who would engage in full-time employment. Table 10
shows the number of applications completed in a period longer than the
30-day regulatory timeframe in FY 2017, the associated number of lost
working days, and an estimate of the resulting lost compensation. The
two categories over 120 days show the declining number of

[[Page 37540]]

applications that remain pending after 200 days and the maximum number
of days it took to adjudicate an initial EAD completed in FY 2017,
which was 810 calendar days.
---------------------------------------------------------------------------

\87\ Calculations: 2,655,429 lost working days * ($96.36 per
day) = $255.88 million; 2,655,429 lost working days * ($291.77 per
day) = $774.76 million.

Table 10--Summary of Calculations for Initial Form I-765 for Pending Asylum Applicants That Took Longer Than
[FY 2017]
--------------------------------------------------------------------------------------------------------------------------------------------------------
31-60 Days 61-90 Days 91-120 Days 121-200 Days 201-810 Days Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
FY 2017 Completions................... 71,556 31,356 11,734 4,048 394 119,088
Lost Calendar Days.................... 899,402 1,377,308 817,073 466,524 91,019 3,651,326
Lost Working Days..................... 691,314 992,880 581,237 330,038 59,960 2,655,429
Lost Compensation (lower bound)....... $66,615,017 $95,673,917 $56,007,997 $31,802,462 $5,777,746 $255,877,138
Lost Compensation (upper bound)....... $201,702,197 $289,689,023 $169,585,427 $96,293,999 $17,494,313 $774,764,960
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.
Note: The prevailing minimum wage is used to calculate the lower bound while a national average wage is used to calculate the upper bound lost
compensation.

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). USCIS acknowledges that there may be additional
opportunity costs to employers such as additional search costs.
However, 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.
USCIS also recognizes that companies would incur additional costs
not captured in the estimates of lost compensation above. In cases
where companies cannot find reasonable substitutes 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.
USCIS continues to resource the adjudication of pending asylum EAD
applications. In response to the Rosario v. USCIS litigation and to
comply with the court order, USCIS has dedicated as many resources as
practicable to these adjudications but continues to face an increasing
asylum application backlog, which in turn increases the numbers of
applicants eligible for pending asylum EADs. However, this reallocation
of resources is not a long-term sustainable solution because USCIS has
many competing priorities and many time-sensitive adjudication
timeframes. Reallocating resources in the long-term is not sustainable
due to work priorities in other product lines. USCIS could hire more
officers, but that would not immediately and in all cases shorten
adjudication timeframes because (1) additional time would be required
to onboard and train new employees and (2) for certain applications,
additional time is needed to fully vet an applicant, regardless of
staffing levels. In addition, there is currently no fee for asylum
applications or the corresponding initial EAD applications, and the
cost of adjudication is covered by fees paid by other benefit
requesters. USCIS is uncertain of the actual cost impacts of hiring
additional adjudicators to process these EAD applications at this time.
If the backlog dissipates in the future, USCIS may seek to redistribute
adjudication resources. USCIS may also redistribute adjudication
resources for other operational needs.
This rule may result in a delay for some applicants to earn
compensation if EAD processing is delayed beyond the current 30-day
regulatory timeframe. The lost compensation to asylum applicants could
range from $255.88 million to $774.76 million annually, depending on
the wages the asylum applicant would have earned. The ten-year total
discounted costs at 3 percent could range from $2.182 billion to $6,609
billion, and at 7 percent could range from $1.797 billion to $5.442
billion (years 2020-2029). USCIS recognizes that the anticipated
impacts of this rule could be overstated if the provisions in the
broader asylum EAD NPRM are finalized as proposed. Specifically, the
broader asylum EAD NPRM proposes to limit or delay eligibility for
employment authorization for certain asylum applicants. Accordingly, if
the population of aliens is less than estimated as a result of the
broader asylum EAD rule, the estimated impacts of this rule could be
overstated because the population affected may be lower than estimated
in this rule.
In instances where a company cannot hire replacement labor for the
position the asylum applicant would have filled, USCIS acknowledges
that delays may result in tax revenue losses to the government. It is
difficult to quantify income tax losses because individual tax
situations vary widely \88\ but USCIS estimates the potential loss to
other 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).\89\ With both the employee and employer not
paying their respective portion of Medicare and Social Security taxes,
the total estimated tax loss for Medicare and social security is 15.3
percent.\90\ Lost wages ranging from $255.88 million to $774.76 million

[[Page 37541]]

would result in employment tax losses to the government ranging from
$39.15 million to $118.54 million annually.\91\ Again, depending on the
circumstances of the employee, there could be additional federal income
tax losses not estimated here. There may also be state and local income
tax losses that would vary according to the jurisdiction.
---------------------------------------------------------------------------

\88\ 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.
\89\ 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.pdf (last viewed December
9, 2019).
\90\ 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.
\91\ Calculations: Lower bound lost wages $255.88 million x 15.3
percent employee tax rate = $39.15 million. Upper bound lost wages
$774.76 million x 15.3 percent employee tax rate = $118.54 million.
---------------------------------------------------------------------------

In addition to taxes, USCIS also considered the effects of this
rule on USCIS resources. In response to the Rosario v. USCIS litigation
and to comply with the court order, USCIS has dedicated as many
resources as practicable to adjudications of initial EAD applications
for pending asylum applicants, but continues to face a historic asylum
application backlog, which in turn increases the numbers of applicants
eligible for pending asylum EADs. However, this reallocation of
resources is not a long-term, sustainable solution because USCIS has
many competing priorities and many time-sensitive adjudication
timeframes. Reallocating resources in the long-term is not sustainable
due to work priorities in other product lines. Hiring more officers
could bring improvements but that would not immediately shorten
adjudication timeframes because additional time would be required to
onboard new employees and train them. In addition, there is currently
no fee for asylum applications or the corresponding initial EAD
applications, and the cost of adjudication is covered by fees paid by
other benefit requesters. USCIS is uncertain of the actual cost impacts
of hiring additional adjudicators to process these EAD applications at
this time. Finally, USCIS has found that certain applications
inherently cannot be processed in a specific number of days due to
vetting procedures and background checks that simply require additional
time (see Table 10 where processing days in FY 2017 reached a maximum
810 days). Therefore, meeting the 30-day timeframe does not solely
depend on hiring more adjudication officers because for certain
applications additional time is needed for processing. Thus, USCIS is
removing the 30-day timeline rather than increasing the number of
adjudication officers in the long-term.
This rule is expected to result in reduced opportunity costs to the
Federal Government. Since Rosario compelled USCIS to comply with the
30-day provision in FY 2018, USCIS has redistributed its adjudication
resources to work up to full compliance. When the 30-day timeframe is
removed, these redistributed resources may be reallocated, potentially
reducing delays in processing of other applications and avoiding costs
associated with hiring additional employees. USCIS has not estimated
these avoided costs.
DHS also acknowledges the distributional impacts associated with an
applicant waiting for an EAD onto the applicant's support network. DHS
assumes the longer an asylum applicant's EAD is delayed, the longer the
applicant's support network is providing assistance to the applicant.
DHS cannot determine how much monetary or other assistance is provided
to such applicants.
USCIS does not anticipate that removing the separate 90-day EAD
filing requirement would result in any costs to applicants or the
Federal Government, as it makes a procedural change that benefits the
applicant.
b. Benefits
By eliminating the 30-day provision, DHS will be able to operate
under long-term sustainable case processing times for initial EAD
applications for pending asylum applicants, to allow sufficient time to
address national security and fraud concerns, and to maintain
technological advances in document production and identity verification
that USCIS must fulfill as a part of its core mission within DHS.
Applicants will rely on up-to-date processing times, which provide
realistic expectations of adjudication times.
This rule would end future litigation over the 30-day adjudication
timeframe, such as the litigation referenced above. Even applications
that are not subject to a set timeframe, however, could in some cases
be the subject of litigation on ``unreasonable delay'' theories. And
more important, as indicated above, as a primary goal, USCIS seeks to
adequately vet applicants and adjudicate applications as quickly and
efficiently as possible.
USCIS will benefit from the removal of the 90-day renewal
requirement, because regulations are being updated to match that of
other EAD categories and it would ensure that the regulatory text
reflects current DHS policy and regulations under DHS's 2017 AC21 Rule.
c. Labor Market Overview
As discussed in the population section of this analysis, USCIS
anticipates receiving approximately 474,037 (non-replacement) Form I-
765 applications annually from pending asylum applicants with an
estimated 261,782 initial applications and 212,255 renewal
applications. Since this rule will only affect initial applicants who
experience potential delays in processing, USCIS estimates the affected
population to be approximately 119,088 applications.\92\ The U.S. labor
force consists of a total of 164,404,000, according to November 2019
data.\93\ Therefore, the population affected by this rule represents
0.07 percent of the U.S. labor force, suggesting that the number of
potential workers no longer expecting a 30-day processing timeframe
make up a very small percentage of the U.S. labor market.\94\
---------------------------------------------------------------------------

\92\ In FY 2017, USCIS adjudicated 119,088 approved applications
past the regulatory set timeframe.
\93\ Figures obtained from Bureau of Labor Statistics,
Employment Situation News Release--November 2019, Table A-8 Employed
persons by class of worker and part-time status, February 21, 2020.
Available at https://www.bls.gov/news.release/archives/empsit_12062019.pdf.
\94\ Calculation: (119,088 approximate initial applicants who
could experience processing delays per year/164,404,000 workers)
*100 = 0.07 percent.
---------------------------------------------------------------------------

In any case, USCIS notes that this rule does not introduce any
newly eligible workers into the labor force, or permanently prevent any
eligible workers from joining the labor force. This rule only amends
the processing of initial and renewal employment authorizations for
pending asylum applicants. The ability of pending asylum applicants to
be eligible for requesting employment authorization in certain
circumstances is in existing regulations; this rulemaking is not
seeking to alter which pending asylum applicants are eligible to apply
for employment authorization. Therefore, this rule will not change the
composition of the population of the estimated 261,782 initial
applicants who may apply for employment authorization or the number of
workers entering the labor force; rather, this rule could delay 119,088
pending asylum applicants from entering the U.S. labor market by an
average of approximately 31 calendar days each, for a total of
3,651,326 days.\95\
---------------------------------------------------------------------------

\95\ Calculation: 3,654,326 total days/119,088 applicants = 31
days (rounded).
---------------------------------------------------------------------------

d. Alternatives
(1) Alternative: 90-Day Regulatory Timeframe
DHS considered an alternative to removing the 30-day regulatory
timeframe, to instead extend the regulatory timeframe to 90 days.
Currently, under the Rosario v. USCIS court order, USCIS must comply
with its existing regulation requiring a 30-day

[[Page 37542]]

timeframe and process all initial EAD applications for asylum
applicants within 30 days. Under this alternative, USCIS would instead
process all future applications within 90 days. In FY 2017, prior to
the Rosario v. USCIS court order, USCIS was able to sustainably process
approximately 47 percent of applications within 30 days. USCIS,
therefore, assumes 47 percent of applicants would remain unaffected
under this 90-day alternative. USCIS assumes the remaining 53 percent
of applicants would have their processing time extended under this
alternative. In FY 2017 there were a total of 119,088 approved
applications for which processing took more than 30 days. USCIS assumes
approved applications that were processed in 31-60 days, and 61-90 days
in FY 2017 (71,556 and 31,356 applicants, respectively) would be
processed in a similar amount of time under this alternative. For the
16,176 approved applications that took more than 90 days to process in
FY 2017, USCIS assumes the processing time under this alternative would
be 90 days, as this alternative would set the maximum processing time
at 90 days. USCIS notes that while processing for this group under the
90-day alternative would be longer than the current 30-day processing
time under the Rosario v. USCIS court order, it would be shorter as
compared to this rule, which removes any processing timeframe.\96\
---------------------------------------------------------------------------

\96\ In FY 2017, USCIS adjudicated 16,176 approved and 5,202
denied (c)(8) EAD applications in over 90 days.
---------------------------------------------------------------------------

Based on the analysis provided in the Transfers and Costs section,
USCIS used FY 2017 daily processing data to estimate lost wages, lost
taxes, and other benefits for this alternative proposal. In FY 2017,
USCIS adjudicated 102,912 approved applications \97\ between 31 and 90
days. USCIS estimates that under this alternative the 102,912 approved
EAD applicants would have experienced an estimated total 1,684,194 lost
working days, and lost compensation could have ranged from $158.82
million to $480.89 million \98\ annually depending on the wages the
asylum applicant would have earned. In FY 2017, USCIS adjudicated
16,176 approved applications in greater than 90 days. USCIS estimates
that under this alternative the 16,176 approved EAD applicants would
have experienced an estimated total 679,392 lost working days, and lost
compensation could have ranged from $65.47 million to $198.23 million
annually depending on the wages the asylum applicants would have
earned. Table 11 shows the number of approved applications completed in
more than 30 days in FY 2017, the associated number of lost working
days, and an estimate of the resulting lost compensation.
---------------------------------------------------------------------------

\97\ In FY 2017, USCIS adjudicated 10,658 denied (c)(8) EAD
applications between 31 and 90 days. Since denied applicants would
not obtain work authorization and would not lose working days, this
population is not be impacted by this rule and are therefore not
included in the analysis for lost compensation.
\98\ Calculations: 1,648,194 lost working days * ($96.36 per
day) = $158.82 million; 1,648,194 lost working days * ($291.77 per
day) = $480.89 million.

Table 11--Summary of Calculations for Initial Form I-765 for Pending Asylum Applicants in FY 2017
----------------------------------------------------------------------------------------------------------------
Greater than 90
31-60 Days 61-90 Days days Total
----------------------------------------------------------------------------------------------------------------
FY 2017 Completions................. 71,556 31,356 16,176 119,088
Lost Calendar Days.................. 899,402 1,377,308 970,560 3,247,270
Lost Working Days................... 691,314 992,880 679,392 2,377,451
Lost Compensation (lower bound)..... $66,615,017 $95,673,917 $65,466,213 $227,755,147
Lost Compensation (upper bound)..... $201,702,197 $289,689,023 $198,223,758 $689,614,978
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.
Note: The prevailing minimum wage is used to calculate the lower bound while a national average wage is used to
calculate the upper bound lost compensation.

In addition to the lost wages, USCIS acknowledges that such
processing delays may result in the loss in tax revenue to the
government. As was done in the analysis in the Transfers and Costs
section, USCIS estimates the potential loss to Medicare and social
security. Lost wages ranging $227.76 million to $689.61 million would
result in employment tax revenue losses to the government ranging from
$34.85 million to $105.51 million annually.\99\ Again, depending on the
circumstances of the employee, there could be additional federal income
tax losses not estimated here. There may also be state and local income
tax losses that would vary according to the jurisdiction. The ten-year
total discounted lost compensation to asylum applicants at 3 percent
could range from $1.943 billion to $5.883 billion, and, at 7 percent
could range from $1.600 billion to $4.844 billion (years 2020-2029).
USCIS recognizes that the impacts of this alternative could be
overstated if the provisions in the broader asylum EAD NPRM are
finalized as proposed. Specifically, the broader asylum EAD NPRM
proposed to limit or delay eligibility for employment authorization for
certain asylum applicants.
---------------------------------------------------------------------------

\99\ Calculations: Lower bound lost wages $227.76 million x 15.3
percent employee tax rate = $34.85 million. Upper bound lost wages
$689.61 million x 15.3 percent employee tax rate = $105.51 million.
---------------------------------------------------------------------------

As previously discussed, USCIS does not know the portion of overall
impacts of this rule that are transfers or costs, but estimates that
the maximum monetized impact of this 90-day alternative from lost
compensation is $689.61 million annually. Accordingly, if companies are
unable to find reasonable labor substitutes for the position the asylum
applicant would have filled then $689.61 million is the estimated
maximum monetized cost of the rule and $0 is the estimated minimum in
monetized transfers. Additionally, under this scenario, there would be
a reduction of $105.51 million in employment tax transfers from
companies and employees to the Federal Government. Conversely, if all
companies are able to easily find reasonable labor substitutes, they
will bear little or no costs, so $689.61 million 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).
(2) Comparison of Alternatives
Currently, the Rosario v. USCIS court decision, 365 F. Supp. 3d
1156 (W.D. Wash. 2018), requires USCIS to process asylum EAD
applications in accord with the current regulatory timeframe of 30
days. This rule removes any adjudication timeframe for processing
future asylum EAD applications. USCIS also considered an alternative
under which USCIS would process all future applications within 90 days.
In the table

[[Page 37543]]

below, USCIS compares the lost working days and associated lost
compensation and taxes under the 90-day alternative with the rule. As
previously discussed, if companies can find replacement labor for the
position the asylum applicant would have filled, the effects of this
rule would be primarily transfers from asylum applicants to others
already in the labor market (or induced to return). If companies cannot
find reasonable substitutes, the rule would primarily be a cost to
these companies through lost productivity and profits, and also result
in a decrease in employment tax transfers from employees to the
government. USCIS uses the lost compensation to asylum applicants as a
measure of the overall impact of the rule--either as distribution
impacts (transfers) or as a proxy for businesses' cost for lost
productivity.

Table 12--Comparison of Alternatives, Using FY 2017 Annual Data
--------------------------------------------------------------------------------------------------------------------------------------------------------
Lost employment Lost employment
Number of taxes when taxes when
applicants Lost working days Lost compensation Lost compensation replacement labor replacement labor
impacted by (lower bound) (upper bound) is not found is not found
change (FY 2017) (lower bound) (upper bound)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Current 30-day Processing N/A N/A N/A N/A N/A N/A
Timeframe (i.e., no action
baseline)........................
90-day Adjudication Timeframe 119,088 2,377,451 $227,755,147 $689,614,978 $34,846,537 $105,511,092
Alternative......................
No Adjudication Timeframe......... 119,088 2,655,429 255,877,138 774,764,960 39,149,202 118,539,039
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.

The distribution of existing government resources would vary under
the baseline, the final rule, and the 90-day alternative. When Rosario
compelled USCIS to comply with the 30-day regulatory provision in FY
2018 (the baseline), USCIS redistributed its adjudication resources to
work up to full compliance. When the 30-day timeframe is removed all of
these redistributed resources may be reallocated back to the way they
were pre-Rosario (which USCIS assumes will look like FY 2017). Under
the 90-day alternative, some of the resources could be moved back, but
not all of them because in FY 2017 USCIS was able to adjudicate 92
percent of applicants in 90 days.
DHS did not pursue the 90-day alternative because although it would
provide USCIS with more time to adjudicate initial EAD applications
from pending asylum applicants and applicants with a new expected
timeframe, it would not provide USCIS with the certainty and
flexibility it needs to fulfill its core mission. Further, under DHS's
final 2017 AC21 Rule, USCIS removed the 90-day timeframe for all other
EAD categories. Maintaining any adjudication timeframe for this EAD
would unnecessarily constrict adjudication workflows. Ultimately, USCIS
is unable to plan its workload and staffing needs with the level of
certainty that a binding timeframe may require and has no way of
predicting what national security and fraud concerns may be or what
procedures would be necessary in the future. DHS therefore declined to
adopt a 90-day regulatory timeframe.

B. Regulatory Flexibility Act

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 entities during
the development of their rules. The term ``small entities'' refers to
small businesses, not-for-profit organizations that are not dominant in
their fields, and governmental jurisdictions with populations of less
than 50,000. This rule will continue to provide employment
authorization to asylum applicants who voluntarily apply for such
benefits. This rule only removes the 30-day adjudication timeframe and
the corresponding 90-day renewal requirement. For the purposes of the
RFA, DHS estimates that approximately 119,088 aliens may be impacted by
this rule annually. Individuals are not considered by the RFA to be a
small entity. As previously explained, this rule may result in lost
compensation for some initial applicants whose EAD processing is
delayed beyond the 30-day regulatory timeframe. However, the rule does
not directly regulate employers.
The RFA does not require agencies to examine the impact of indirect
costs to small entities. Regardless, 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 rule.
Several public comments claimed that the rule would pose burdens to
small entities, but no such comments claimed that the rule directly
regulates or burdens small entities. USCIS emphasizes that the rule
will not regulate employers and only regulate individuals. A final
regulatory flexibility analysis (FRFA) follows.
(1) A Statement of the Need for, and Objectives of the Rule
This rule removes the 30-day regulatory timeframe for the
adjudication of initial EAD applications by pending asylum applicants
because it is outdated, does not account for the recent volume of
applications and no longer reflects current operations. The rule also
makes a technical change to remove the 90-day filing requirement to
reduce confusion regarding EAD renewal requirements for pending asylum
applicants and ensure the regulatory text reflects current DHS policy
and regulations under DHS's final 2017 AC21 Rule.
(2) A Statement of the Significant Issues Raised by the Public Comments
in Response to the Initial Regulatory Flexibility Analysis, a Statement
of the Assessment of the Agency of Such Issues, and a Statement of any
Changes Made in the Rule as a Result of Such Comments
Several commenters made reference to small entities.
Comments: A couple of commenters mentioned that refugees and
asylees engage in entrepreneurial projects and employment at a higher
rate than U.S.-born citizens, creating small businesses and thus jobs
that drive growth in the US economy, and that the small businesses and
the jobs they create are the engines of growth, innovation, and
stability. A couple commenters claimed that lost wages to asylum-
seekers would likely result in losses to small businesses in asylum-
seekers, and that

[[Page 37544]]

the rule would have significant negative impact not only on asylum
seekers, but also on employers, small businesses, communities, and the
economy as a whole.
USCIS Response: USCIS appreciates the commenters' input. As we have
explained in our earlier responses and in the regulatory analysis, the
rule might impact the timing under which asylum seekers are able to
earn labor income, but it does not regulate employers. In the NPRM,
USCIS acknowledged that if companies cannot find reasonable substitutes
for the labor the asylum applicants would have provided, these
companies would incur costs through lost productivity and profits. No
commenters claimed that the rule directly regulates or directly impacts
small entities. The rule is being adopted without material change from
the NPRM.
(3) The Response of the Agency to any Comments Filed by the Chief
Counsel for Advocacy of the Small Business Administration in Response
to the Proposed Rule, and a Detailed Statement of any Change Made to
the Proposed Rule in the Final Rule as a Result of the Comments
DHS did not receive comments on this rule from Chief Counsel for
Advocacy of the Small Business Administration.
(4) A Description of and an Estimate of the Number of Small Entities to
Which the Rule Will Apply or an Explanation of Why No Such Estimate Is
Available
This rule directly regulates pending asylum applicants, or
individuals, applying for work authorization. However, DHS presents
this FRFA as the rule may indirectly impact small entities who incur
opportunity costs by having to choose the next best alternative to
immediately filling the job the asylum applicant would have filled. DHS
cannot reliably estimate how many small entities may be indirectly
impacted as a result of this rule, but DHS believes the number of small
entities directly regulated by this rule is zero.
(5) A Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the 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 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.
(6) A Description of the Steps the Agency Has Taken To Minimize the
Significant Economic Impact on Small Entities Consistent With the
Stated Objectives of Applicable Statutes, Including a Statement of the
Factual, Policy, and Legal Reasons for Selecting the Alternative
Adopted in the Final Rule and Why Each One of the Other Significant
Alternatives to the Rule Considered by the Agency Which Affect the
Impact on Small Entities Was Rejected
DHS is not aware of any alternatives to the rule that accomplish
the stated objectives and that would minimize the economic impact of
the rule on small entities as this rule imposes no direct costs on
small entities.

C. Congressional Review Act

The Office of Information and Regulatory Affairs has determined
that this is a major rule, as defined by 5 U.S.C. 804. Accordingly,
absent exceptional circumstances, this rule will take effect 60 days
after its publication. On or before the date of publication, DHS will
submit to each House of Congress and the Comptroller General the
reports required by 5 U.S.C. 801.

D. Unfunded Mandates Reform Act of 1995

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. The value equivalent of $100
million in 1995, adjusted for inflation to 2020 levels by the Consumer
Price Index Inflation Calculator, is $172 million.\100\
---------------------------------------------------------------------------

\100\ U.S. Bureau of Labor Statistics, Consumer Price Index
Inflation Calculator, January 1995 to January 2020, available at
https://data.bls.gov/cgi-bin/cpicalc.pl (last visited Feb. 26,
2020).
---------------------------------------------------------------------------

Some private sector entities may incur a cost, as they could be
losing the productivity and potential profits the asylum applicant
could have provided had the asylum applicant been in the labor force
earlier. Entities may also incur opportunity costs by having to choose
the next best alternative to immediately filling the job the asylum
applicant would have filled. In such instances, USCIS does not know if
or to what extent this would impact the private sector, but assesses
that such impacts would result indirectly from delays in employment
authorization, and would not be a consequence of an enforceable duty.
As a result, such costs would not be attributable to a mandate under
UMRA. See 2 U.S.C. 658(6), (7) (defining a federal private sector
mandate as, inter alia, a regulation that imposes an enforceable duty
upon the private sector except for a duty arising from participation in
a voluntary Federal program); 2 U.S.C. 1502(1). Similarly, any costs or
transfer effects on state and local governments would not result from a
mandate under UMRA. See 2 U.S.C. 658 (5), (6) (defining a federal
intergovernmental mandate as, inter alia, a regulation that imposes an
enforceable duty upon State, local, or tribal governments, except for a
duty arising from participation in a voluntary Federal program); 2
U.S.C 1502(1).

E. Executive Order 13132 (Federalism)

This rule would not have substantial direct effects on the states,
on the relationship between the Federal Government and the states, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132 (Federalism), 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 (Civil Justice Reform).

G. Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995, Public Law 104-13, all
agencies are required to submit to OMB, for review and approval, any
reporting requirements inherent in a rule. See Public Law 104-13, 109
Stat. 163 (May 22, 1995). This rule does not impose any reporting or
recordkeeping requirements under the Paperwork Reduction Act.

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 rule may delay the ability for some initial
applicants to work, which could decrease disposable income of families,
as the lost compensation to asylum applicants could range from $255.88
million to $774.76 million annually depending on the wages the

[[Page 37545]]

asylum applicant would have earned. For the reasons stated elsewhere in
this rule, however, DHS has determined that the benefits of the action
justify the potential financial impact on the family. Further, the
potential for lost compensation does not account for the fact that
compliance with the 30-day timeframe is not sustainable in the long-
term, as DHS has been unable to meet the 30-day processing timeframe in
certain cases even with additional adjudication resources.

I. Executive Order 13175

This rule does not have tribal implications under Executive Order
13175, Consultation and Coordination with Indian Tribal Governments,
because it does 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.

J. National Environmental Policy Act (NEPA)

DHS Directive (Dir) 023-01 Rev. 01 and Instruction (Inst) 023-01-
001 Rev. 1 establish the policies and procedures that DHS and its
components use to comply with NEPA and the Council on Environmental
Quality (CEQ) regulations for implementing NEPA, 40 CFR parts 1500-
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.
Inst. 023-01-001 Rev. 01 establishes Categorical Exclusions that DHS
has found to have no such effect. Inst. 023-01-001 Rev. 01 Appendix A
Table 1. 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.
Dir. 023-01 Rev. 01 section V.B (1)-(3).
This rule removes the following purely administrative provisions
from an existing regulation: (1) The 30-day adjudication provision for
EAD applications filed by asylum applicants, and (2) the provision
requiring pending asylum applicants to submit Form I-765 renewal
applications 90 days before their employment authorization expires. 8
CFR 208.7(a)(1), (d).
This rule clearly falls within categorical exclusions number A3(a)
in Inst. 023-01-001 Rev. 01, Appendix A, Table 1: ``Promulgation of
rules . . . strictly of an administrative or procedural nature'' and
A3(d) for rules that interpret or amend an existing regulation without
changing its environmental effect. Further, this rule is not part of a
larger action and presents no extraordinary circumstances creating the
potential for significant environmental effects. Therefore, this rule
is categorically excluded from further NEPA review.

K. 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 rule
does not use technical standards. Therefore, we did not consider the
use of voluntary consensus standards.

L. Executive Order 12630

This 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.

M. 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 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.

N. 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 rule and determined that this rule would
not have a significant adverse effect on the supply, distribution, or
use of energy. Therefore, this rule does not require a Statement of
Energy Effects under Executive Order 13211.

O. Signature

The Acting Secretary of Homeland Security, Chad F. Wolf, having
reviewed and approved this document, is delegating the authority to
electronically sign this document to Chad R. Mizelle, who is the Senior
Official Performing the Duties of the General Counsel for DHS, for
purposes of publication in the Federal Register.

List of Subjects in 8 CFR Part 208

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

Accordingly, DHS amends part 208 of chapter I of title 8 of the
Code of Federal Regulations as follows:

PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL

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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.

Sec. 208.7 [Amended]

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2. Amend Sec. 208.7 by:
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a. In paragraph (a)(1), removing the words ``If the asylum application
is not so denied, the Service shall have 30 days from the date of
filing of the request employment authorization to grant or deny that
application, except that no'' and adding, in their place, the word
``No'' and removing the words ``the Service'' wherever they appear and
adding, in their place, the word ``USCIS'';

[[Page 37546]]

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b. In paragraph (c)(3), removing the words ``the Service'' and adding,
in its place, the word ``DHS''; and
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c. Removing paragraph (d).

Chad R. Mizelle,
Senior Official Performing the Duties of the General Counsel, U.S.
Department of Homeland Security.
[FR Doc. 2020-13391 Filed 6-19-20; 8:45 am]
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