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CIS No. 2648-19; DHS Docket No. USCIS-2019-0011]

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CIS No. 2648-19; DHS Docket No. USCIS-2019-0011] This document is scheduled to be published in the Federal Register on 11/14/2019 and available online at https://federalregister.gov/d/2019-24293, 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: Notice of proposed rulemaking. SUMMARY: The U.S. Department of Homeland Security (DHS) is proposing to modify its current regulations governing asylum applications, interviews, and eligibility for employment authorization based on a pending asylum application. DATES: Written comments and related material to this proposed rule, including the proposed information collections, must be received to the online docket via www.regulations.gov, or to the mailing address listed in the ADDRESSES section below, on or before [INSERT DATE 60 DAYS FROM DATE OF PUBLICATION IN THE FEDERAL REGISTER]. ADDRESSES: You may submit comments on this proposed rule using one of the following methods: Federal eRulemaking Portal [preferred]: http://www.regulations.gov. Follow the website instructions for submitting comments. Mail: Samantha Deshommes, Chief, Regulatory Coordination Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue, NW, Washington, DC 20529. To ensure proper handling, please reference DHS Docket No. USCIS-2019-0011 in your correspondence. Mail must be postmarked by the comment submission deadline. 1 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. Public Participation II. Executive Summary A. Major Provisions of the Regulatory Action B. Summary of Costs and Benefits, and Transfer of Payment III. Purpose of the Proposed Rule A. Efforts to Reform the Asylum System B. Need for Reform IV. Background A. Legal Authority B. Eligibility for Asylum C. Affirmative vs. Defensive Asylum Filings D. Employment Authorization for Asylees and Asylum Applicants E. Asylum and EAD Adjudications V. Discussion of the Proposed Rule A. 365-Day Waiting Period to Apply for Asylum-Application-Based EADs B. One-Year Filing Deadline C. Criminal Bars to Eligibility D. Procedural Reforms E. Termination of Employment Authorization 1. Denial of Asylum Application by USCIS Asylum Officer 2. Termination After Denial by IJ 3. Automatic Extensions of Employment Authorizations and Terminations F. Aliens Who Have Established Credible or Reasonable Fear of Persecution or Torture and Who Have Been Paroled Into the United States G. Illegal Entry H. Effective Date of the Final Rule VI. Statutory and Regulatory Requirements A. Executive Orders 12866 (Regulatory Planning and Review) and 13563 (Improving Regulation and Regulatory Review) 1. Summary 2. Background and Purpose of Rule 3. Population 4. Transfers, Costs, and Benefits of this Proposed Rule B. Regulatory Flexibility Act (RFA) 2 C. Congressional Review Act D. Unfunded Mandates Reform Act of 1995 (UMRA) E. Executive Order 13132 (Federalism) F. Executive Order 12988 (Civil Justice Reform) G. Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments) H. Family Assessment I. National Environmental Policy Act (NEPA) J. National Technology Transfer and Advancement Act K. Executive Order 12630 (Governmental Actions and Interference with Constitutionally Protected Property Rights) L. Executive Order 13045 (Protection of Children from Environmental Health Risks and Safety Risks) M. Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) N. Paperwork Reduction Act (PRA) Table of Abbreviations ASC—Application Support Center BCR—Biometrics Collection Rate BFR—Biometrics Fee Ratio BIA—Board of Immigration Appeals BLS—Bureau of Labor Statistics CAT—Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment CBP—U.S. Customs and Border Protection CFR—Code of Federal Regulations CPMS—Customer Profile Management System DHS—U.S. Department of Homeland Security DOJ—Department of Justice DOS—Department of State E.O.—Executive Order EAD—Employment Authorization Document EOIR—Executive Office for Immigration Review FBI—Federal Bureau of Investigation FDNS—Fraud Detection and National Security Directorate FIFO—First in/First Out Form I-589—Application for Asylum and for Withholding of Removal Form I-765—Application for Employment Authorization Form I-863—Notice of Referral to Immigration Judge FY—Fiscal Year GSA—General Services Administration HSA—Homeland Security Act of 2002 ICE—U.S. Immigration and Customs Enforcement IIRIRA—Illegal Immigration Reform and Immigrant Responsibility Act of 1996 INA—Immigration and Nationality Act 3 IRCA—Immigration Reform and Control Act of 1986 INS—Immigration and Naturalization Service LCA—Labor Condition Application LIFO—Last In, First Out NEPA—National Environmental Policy Act NTA—Notice to Appear OMB—Office of Management and Budget PM—Presidential Memorandum PRA—Paperwork Reduction Act RFA—Regulatory Flexibility Act Secretary—Secretary of Homeland Security UMRA—Unfunded Mandates Act of 1995 U.S.C.—United States Code USCIS—U.S. Citizenship and Immigration Services I. Public Participation All interested parties are invited to participate in this rulemaking by submitting written data, views, comments, and arguments on all aspects of this proposed rule. DHS also invites comments that relate to the economic, legal, environmental, or federalism effects that might result from this proposed rule. Comments must be submitted in English or include an English translation. Comments that will provide the most assistance to DHS in implementing these changes will reference a specific portion of the proposed rule, explain the reason for any recommended change, and include data, information, or authority that supports such recommended change. Instructions: If you submit a comment, you must include the agency name (U.S. Citizenship and Immigration Services) and the DHS Docket No. USCIS-2019-0011 for this rulemaking. Please note that DHS has published a notice of proposed rulemaking (NPRM) entitled “Removal of 30-Day Processing Provision for Asylum Applicant-Related Form I-765 Employment Authorization Applications,” DHS Docket No. USCIS-2018-0001, separate from this NPRM. The two NPRMs include distinct proposals, and for this proposed rule, DHS will 4 only consider comments submitted to Docket No. USCIS-2019-0011. Please ensure that you submit your comments to the correct docket. Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at http://www.regulations.gov, and will include any personal information you provide. Therefore, submitting this information makes it public. You may wish to consider limiting the amount of personal information that you provide in any voluntary public comment submission you make to DHS. DHS may withhold information provided in comments from public viewing that it determines may impact the privacy of an individual or is offensive. For additional information, please read the Privacy Act notice that is available via the link in the footer of http://www.regulations.gov. Docket: For access to the docket and to read background documents or comments received, go to http://www.regulations.gov, referencing DHS Docket No. USCIS-2019-0011. You may also sign up for email alerts on the online docket to be notified when comments are posted or a final rule is published. II. Executive Summary DHS seeks to reduce incentives for aliens to file frivolous, fraudulent, or otherwise non- meritorious asylum applications to obtain employment authorization filed by asylum applicants seeking an employment authorization document pursuant to 8 CFR 274a.12(c)(8) (hereinafter “(c)(8) EAD” or “EAD”) or other non-asylum-based forms of relief such as cancellation of removal, and to discourage illegal entry into the United States. DHS also seeks to reduce incentives for aliens to intentionally delay asylum proceedings in order to extend the period of employment authorization based on the pending application, and to simplify the adjudication process. DHS seeks to prevent those asylum applicants who have committed certain crimes from 5 obtaining a (c)(8) employment authorization document, and to make the decision to grant (c)(8) employment authorization to asylum applicants discretionary, in line with USCIS’ statutory authority. DHS is proposing to modify its current regulations governing asylum applications, interviews, and eligibility for employment authorization based on a pending asylum application. DHS proposes to modify its regulations in the following areas: Extend the waiting period to apply for employment authorization: DHS proposes that asylum applicants wait 365 calendar days from the date their asylum applications are received by USCIS or the Department of Justice, Executive Office for Immigration Review (DOJ-EOIR) before they may apply for and receive an EAD. DHS also proposes that USCIS will deny (c)(8) EAD applications if there are any unresolved applicant- caused delays on the date of the EAD adjudication.
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