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DEPARTMENT of HOMELAND SECURITY 8 CFR Parts 208 And

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DEPARTMENT of HOMELAND SECURITY 8 CFR Parts 208 And This document is scheduled to be published in the Federal Register on 06/26/2020 and available online at federalregister.gov/d/2020-13544, and on govinfo.gov Billing Code: 9111-97 DEPARTMENT OF HOMELAND SECURITY 8 CFR Parts 208 and 274a [CIS No. 2648-19; DHS Docket No. USCIS-2019-0011] RIN 1615-AC27 Asylum Application, Interview, and Employment Authorization for Applicants AGENCY: Department of Homeland Security. ACTION: Final rule. SUMMARY: On November 14, 2019, the Department of Homeland Security (DHS) published a notice of proposed rulemaking (NPRM) that would modify DHS’s regulations governing asylum applications, interviews, and eligibility for employment authorization based on a pending asylum application. This final rule implements the proposed rule, with some amendments based on public comments received. DATES: This final rule is effective [Insert date 60 days from date of publication in the FEDERAL REGISTER]. FOR FURTHER INFORMATION CONTACT: Maureen Dunn, Chief, Division of Humanitarian Affairs, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue N.W., Suite 1100, Washington, DC 20529-2140; Telephone (202) 272-8377. SUPPLEMENTARY INFORMATION: Table of Contents I. Executive Summary A. Proposed Rule B. Major Provisions of the Proposed Rule C. Summary of Changes in the Final Rule 1. Effective Date 1 2. Illegal Entry 3. One-Year Filing Deadline 4. Criminal Bars to Eligibility 5. Applicant-Caused Delays D. Summary of Costs, Benefits, and Transfer of Payments II. Purpose of The Regulatory Action A. Efforts to Reform the Asylum System B. Need for Reform III. Background A. Legal Authority B. Eligibility for Asylum C. Affirmative vs. Defensive Asylum Filings D. Employment Authorization for Asylees and Asylum Applicants E. Asylum and EAD Adjudications IV. Discussion of the Final Rule A. 365-Day Waiting Period to Apply for EADs Based on Pending Asylum Applications B. One-Year Filing Deadline C. Criminal Bars to Eligibility D. Procedural Reforms E. Termination of Employment Authorization 1. Denial of Asylum Application by USCIS Asylum Officer 2. Termination After Denial by IJ 3. Automatic Extensions of Employment Authorizations and Terminations 4. Adjudication and Termination of EADs filed by UACs F. Aliens Who Have Established Credible Fear or Reasonable Fear of Persecution or Torture and Who Have Been Paroled Into the United States G. Illegal Entry H. Effective Date of the Final Rule V. Public Comments on the Proposed Rule A. Summary of Public Comments B. Requests to Extend Comment Period C. Severability Clause D. Comments Expressing General Support for the NPRM E. Comments Expressing General Opposition to the NPRM F. Comments Regarding Legal Authority and Statutory Provisions 1. Acting Secretary of Homeland Security’s Legal Authority 2. Relevant Statutes 3. Litigation 4. International Law and Conventions 5. Administrative Procedure Act 6. Constitutional Concerns G. Comments on Specific Rule Provisions 1. 365-day Waiting Period 2. One-Year Filing Deadline 3. Criminal Bars 4. Illegal Entry and Good Cause Exception 2 5. Procedural Reforms 6. Miscellaneous Comments 7. Effective Date and Retroactive Application VI. Public Comments on Economic Analysis and Other Statutory and Regulatory Requirements A. Impacts and Benefits (E.O. 12866 and 13563) B. Other Comments on Statutory and Regulatory Requirements VII. Statutory and Regulatory Requirements A. Executive Orders 12866 (Regulatory Planning and Review) and 13563 (Improving Regulation and Regulatory Review) 1. Summary 2. Background and Purpose of Rule 3. Population 4. Transfers, Costs, and Benefits of this Rule B. Regulatory Flexibility Act (RFA) C. Congressional Review Act D. Unfunded Mandates Reform Act of 1995 (UMRA) E. Executive Order 13132 (Federalism) F. Executive Order 12988 (Civil Justice Reform) G. Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments) H. Family Assessment I. National Environmental Policy Act (NEPA) J. National Technology Transfer and Advancement Act K. Executive Order 12630 (Governmental Actions and Interference with Constitutionally Protected Property Rights) L. Executive Order 13045 (Protection of Children from Environmental Health Risks and Safety Risks) M. Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) N. Paperwork Reduction Act (PRA) O. Signature Table of Abbreviations APA—Administrative Procedure Act ASC—Application Support Center BCR—Biometrics Collection Rate BFR—Biometrics Fee Ratio BIA—Board of Immigration Appeals BLS—Bureau of Labor Statistics CAM—Central American Minors Program CAT—Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment CBP—U.S. Customs and Border Protection CFR—Code of Federal Regulations CPMS—Customer Profile Management System 3 DHS—U.S. Department of Homeland Security DOJ—Department of Justice DOS—Department of State E.O.—Executive Order EAD—Employment Authorization Document EOIR—Executive Office for Immigration Review FBI—Federal Bureau of Investigation FDNS—Fraud Detection and National Security Directorate FIFO—First in/First Out Form I-589—Application for Asylum and for Withholding of Removal Form I-765—Application for Employment Authorization Form I-863—Notice of Referral to Immigration Judge FY—Fiscal Year GSA—General Services Administration HSA—Homeland Security Act of 2002 ICE—U.S. Immigration and Customs Enforcement IIRIRA—Illegal Immigration Reform and Immigrant Responsibility Act of 1996 IJ – Immigration Judge INA—Immigration and Nationality Act INS-Immigration and Naturalization Services IRCA—Immigration Reform and Control Act of 1986 ISO—Immigration Services Officer LCA—Labor Condition Application LIFO—Last In, First Out NEPA—National Environmental Policy Act NOID—Notice of Intent to Deny NPRM—Notice of Proposed Rulemaking NTA—Notice to Appear OMB—Office of Management and Budget PM—Presidential Memorandum PRA—Paperwork Reduction Act RFA—Regulatory Flexibility Act Secretary—Secretary of Homeland Security TPS—Temporary Protected Status TVPRA—The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 UAC – Unaccompanied Alien Children UMRA—Unfunded Mandates Act of 1995 UNHCR—United Nations High Commissioner for Refugees U.S.C.—United States Code USCIS—U.S. Citizenship and Immigration Services VAWA— Violence Against Women Act 4 I. Executive Summary A. Proposed Rule On November 14, 2019, DHS published a notice of proposed rulemaking (“NPRM”) entitled Asylum Application, Interview, and Employment Authorization for Applicants.1 In the NPRM, DHS proposed amendments in order to (1) reduce incentives for aliens to file frivolous, fraudulent, or otherwise non-meritorious asylum applications to obtain employment authorization pursuant to 8 CFR 274a.12(c)(8) (hereinafter “(c)(8) EAD” or “EAD”) or other non-asylum-based forms of relief such as cancellation of removal, and (2) discourage illegal entry into the United States. DHS also proposed changes to reduce incentives for aliens to intentionally delay asylum proceedings in order to extend the period of employment authorization based on the pending asylum application, and to simplify the adjudication process. DHS proposed further changes to prevent asylum applicants who have committed certain crimes from obtaining a (c)(8) EAD, and to make the decision to grant (c)(8) employment authorization to asylum applicants discretionary, in line with DHS’ statutory authority. DHS proposed to modify its regulations in the following areas: 1. Extend the waiting period to apply for employment authorization: DHS proposed that asylum applicants wait 365 calendar days from the date their asylum applications are received by USCIS or the Department of Justice, Executive Office for Immigration Review (DOJ-EOIR) before they may apply for an EAD. DHS also proposed that USCIS will deny requests for (c)(8) EAD applications if there are any unresolved applicant- caused delays on the date of the EAD adjudication. 1 Asylum Application, Interview, and Employment Authorization for Applicants, 84 FR 62374 (proposed Nov. 14, 2019). DHS incorporates by reference the NPRM in its entirety here. 5 2. Eliminate the issuance of recommended approvals for a grant of affirmative asylum: DHS proposed that USCIS will no longer issue recommended approvals for asylum. These are typically cases where an asylum officer has made a preliminary determination to grant asylum but has not yet received the results of the mandatory, confidential investigation of the alien’s identity and required background and security checks. 3. Revise eligibility for employment authorization: DHS proposed to exclude aliens who, absent good cause, entered or attempted to enter the United States at a place and time other than lawfully through a U.S. port of entry from eligibility for (c)(8) employment authorization. DHS also proposed to exclude from eligibility for employment authorization aliens who have failed to file for asylum within one year of their last entry, unless and until an asylum officer or immigration judge (IJ) determines that an exception to the statutory requirement to file for asylum within one year applies. DHS proposed to exclude from eligibility aliens whose asylum applications have been denied by an asylum officer or an IJ during the 365-day waiting period or before the request for initial employment authorization has been adjudicated. DHS further proposed to exclude from eligibility
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