By Raquel Gonzalez-Padron
Those with pending asylum applications can request an Employment Authorization Document (EAD) by filing a Form I-765 through the U.S. Citizenship and Immigration Services (USCIS).[1] The EAD is a document issued by the federal government authorizing certain individuals such as asylees, refugees, asylum seekers, and others to work in the United States for a specified period of time shown in the document.[2] Having an EAD allows individuals who have not been granted the desired immigration benefit they requested, the possibility of supporting themselves and their families in the United States while they await the outcome of their case.[3] Asylum seekers that file applications for employment authorization must wait 150 days after they apply for asylum to be able to submit Form I-765.[4] Then, USCIS has 30 days to decide whether to grant the asylum seeker work authorization or not.[5] As such, an asylum seeker may potentially wait up to 180 days until a decision is rendered, all the while the asylum seeker (that is already in the United States) is prohibited from working.[6] This rule imposes a financial burden on asylum seekers, especially considering that they most likely do not have any means to support themselves after first arriving to the United States.[7]
However, in the near future, all of this could change as the Trump administration is planning to implement additional measures to deter immigration. On the one hand, the Department of Homeland Security (DHS) published a Notice of Proposed Rulemaking on September 9 2019 (hereinafter referenced as the “September NPRM”) seeking to eliminate the regulation that requires USCIS to adjudicate initial applications for employment authorization from asylum seekers in 30 days.[8] It is important to highlight that in the September NPRM, DHS has also proposed to remove a regulation that allows asylum seekers who had already been granted employment authorization and whose authorization was about to expire, to file for the renewal of their work authorization 90 days before its expiration.[9] In the September NPRM, DHS argues that changing the current regulatory framework would allow USCIS sufficient time to process the applications while also maintaining the standards necessary to reduce fraud and ensure national security.[10]
On the other hand, the Trump administration also “seeks to reduce incentives for aliens to file frivolous, fraudulent, or otherwise non-meritorious asylum applications”[11] by extending the waiting period between filing for asylum and filing for employment authorization to 365 days.[12] On November 14, 2019, DHS published a Notice of Proposed Rulemaking (hereinafter referenced as the “November NPRM”) where this idea is presented and includes a myriad of other proposed rules that would exert high burdens on asylum seekers.[13] One of the most onerous proposals would deny employment authorization to any asylum seeker that entered or attempted to enter the country by any means besides lawfully through a port of entry.[14] This proposed regulation would disadvantage all of those fleeing persecution who decide to cross U.S. borders in search of protection without knowing all the intricacies of our legal system.
Among other things, the November NPRM attempts to exclude persons who waited more than a year after their arrival to the United States to file for asylum, those who have been convicted of a felony or aggravated felony, as well as those that committed certain public safety offenses from employment authorization.[15] Even driving under the influence of drugs or alcohol could preclude an asylum seeker from obtaining work authorization.[16] This is because the November NPRM presents the possibility of leaving the grant or denial of petitions for employment authorization where the applicant has committed offenses such as driving under the influence, domestic violence, child abuse, and possession or distribution of controlled substances to USCIS’ discretion based on the totality of the circumstances.[17]
In essence, the delays included in both NPRMs would make an EAD a prized possession for an asylum seeker. But even after being issued employment authorization, asylum seekers would not rest assured they could continuously work legally in the United States. While the November NPRM clarifies that the validity periods for employment authorizations cannot exceed two years, it further indicates that it would be left to USCIS’ discretion to set shorter validity periods for EADs.[18] The proposed regulations presented in both NPRMs would not only make an asylum seeker wait longer periods of time to obtain employment authorization while his/her livelihood and that of his/her family are jeopardized, but more importantly, the proposed regulations would make obtaining financial stability and peace of mind a challenge.[19] Receiving work authorization would merely allow the asylum seeker to momentarily work while the next application for employment authorization is close at hand.
While the agencies involved in these NPRMs present arguments related to fraud reduction, minimizing threats to national security, affording enough time for their officials to process the applications,[20] and disincentivizing asylum seekers from delaying their own cases or presenting frivolous claims in their applications for asylum,[21] the consequences of the proposed rules are severe. The expected consequences would affect asylum seekers, their families and their livelihood,[22] but removing asylum seekers from the U.S. work force would additionally have an effect in the U.S. economy.[23]
For example, if employers are unable to hire an individual for the position an asylum seeker would have occupied, these employers would lose the productivity generated by the asylum seekers and the federal government would lose money on wages it could not tax.[24] The September NPRM, proposing to eliminate the regulation requiring adjudication of Form I-765 in 30 days, estimates that asylum seekers combined would lose compensation between $255.88 and $774.76 million annually depending on the position they could have had occupied had the proposed regulation not been implement.[25] Moreover, the September NPRM indicates that the employment tax losses to the government would range from $39.15 to $118.54 million.[26]
The November NPRM would also impact the U.S. economy, if implemented. If employers are unable to find workers for the positions that asylum seekers would have occupied in absence of this proposed regulation, the estimated monetized cost of the regulation would amount to $4,461.9 million and the loss of taxes for the federal government would rise to $682.9 million.[27]
Both NPRMs would affect employers as they would have to engage in additional costs to find qualified employees, they would lose the productivity that would be provided by asylum seekers, and in a number of cases they would have to settle for the next best alternative available.[28]
Although the federal government presents its arguments in favor of the NPRMs addressed in this article, the real-life consequences of these measures would translate into a bar for asylum seekers to sustain themselves while waiting for a decision.[29] For a large number of asylum seekers the extreme conditions of arriving to a foreign land with no means to lawful employment would be a hard push towards unauthorized employment or abandonment of their claims, thus putting at risk their possibilities of remaining in the United States and consequently their lives and safety.[30]
Both NPRMs sparked hundreds of comments from interested parties and by civil society in general.[31] The comments include fervent partisan statements calling for support towards president Trump’s immigration agenda,[32] concern about the security threats that immigrants constitute,[33] calls for support towards asylum seekers as one of the most vulnerable groups that make up American society,[34] opposition to granting work authorization to asylum seekers because the author of the comment considers them illegal immigrants that should have applied to come to the United States legally,[35] as well as highly researched and informed comments issued by interest groups.[36]
In the meantime, neither NPRM has been approved. The September NPRM , proposing to remove the provision requiring adjudication of asylum seekers’ applications for work authorization, closed the comment period on November 8, 2019[37] while the November NPRM, attempting to modify the waiting period to apply for employment authorization to 365 days, closed the comment period on January 13, 2020.[38]
The proposed changes in the NPRMs would add up to the
uncertainty surrounding seeking asylum in the United States because there is a
real risk that asylum seekers would be precluded from working for an
indeterminate period of time that would well surpass a year. It seems like the federal government is mainly
interested in reducing the incentives for asylum seekers to come to the United
States, but it forgets to put into the equation the persecution, psychological
and physical torture these people have suffered. Even if the incentives to come to the United
States are reduced, asylum seekers are not coming here because of any positive
incentive in the form of employment authorization.[39] Asylum seekers are coming to the United States
because remaining in their native countries would expose them to threats, physical
and psychological torture, persecution, and even death.[40]
[1] See Department of Homeland Security & U.S. Citizenship & Immigration Services, OMB No. 1615-0040, Instructions for Application for Employment Authorization (2018); U.S. Citizenship & Immigration Services, Employment Authorization Document, https://www.uscis.gov/greencard/employment-authorization-document; U.S. Citizenship & Immigration Services, I-765, Application for Employment Authorization, https://www.uscis.gov/i-765.
[2] See U.S. Citizenship & Immigration Services, Employment Authorization Document, https://www.uscis.gov/greencard/employment-authorization-document.
[3] Id.
[4] Department of Homeland Security & U.S. Citizenship & Immigration Services, OMB No. 1615-0040, Instructions for Application for Employment Authorization (2018).
[5] Id.
[6] Id.
[7] See Yael Schacher, Why Forbidding Asylum Seekers from Working Undermines the Right to Seek Asylum, The Wash. Post: Made by Hist. (Nov. 18, 2019, 6:00 AM), https://www.washingtonpost.com/outlook/2019/11/18/why-forbidding-asylum-seekers-working-undermines-right-seek-asylum/.
[8] Removal of 30-Day Processing Provision for Asylum Applicant-Related Form I–765 Employment Authorization Applications, 84 Fed. Reg. 47149 (proposed Sept. 9, 2019).
[9] Id.
[10] Id.
[11] Asylum Application, Interview, and Employment Authorization for Applicants, 84 Fed. Reg. 62375 (proposed Nov. 14, 2019).
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] Id. at 62376.
[19] See Sara Mcelmurry, Commentary: Work Authorization Is a Lifeline for Asylum-Seekers — and for Chicago’s Economy, Chi. Trib.: Comment. (Dec. 26, 2019, 2:16 PM), https://www.chicagotribune.com/opinion/commentary/ct-opinion-migrant-work-rules-20191226-xxgnrwqdlzg3ra4wjr2h5dhpza-story.html; Hilary Thibodeau, Maine Voices: Adding Barriers to Employment Would Hurt Asylum Seekers, Maine Communities, Portland Press Herald: Me. Voices (Dec. 28, 2019), https://www.pressherald.com/2019/12/28/maine-voices-putting-up-further-barriers-to-work-would-hurt-asylum-seekers-maine-communities/.
[20] Removal of 30-Day Processing Provision for Asylum Applicant-Related Form I–765 Employment Authorization Applications supra note 6, at 47149.
[21] Asylum Application, Interview, and Employment Authorization for Applicants supra note 9, at 62375.
[22] See Asylum Application, Interview, and Employment Authorization for Applicants supra note 9, at 62380; Removal of 30-Day Processing Provision for Asylum Applicant-Related Form I–765 Employment Authorization Applications supra note 6, at 47150.
[23] Asylum Application, Interview, and Employment Authorization for Applicants supra note 9, at 62380; Removal of 30-Day Processing Provision for Asylum Applicant-Related Form I–765 Employment Authorization Applications supra note 6, at 47150.
[24] Asylum Application, Interview, and Employment Authorization for Applicants supra note 9, at 62380; Removal of 30-Day Processing Provision for Asylum Applicant-Related Form I–765 Employment Authorization Applications supra note 6, at 47150.
[25] Removal of 30-Day Processing Provision for Asylum Applicant-Related Form I–765 Employment Authorization Applications supra note 6, at 47150.
[26] Id.
[27] Asylum Application, Interview, and Employment Authorization for Applicants supra note 9, at 62380.
[28] See id.
[29] See Schacher, supra note 7.
[30] See id.
[31] Department of Homeland Security, Removal of 30- Day Processing Provision for Asylum Applicant- Related Form I-765 Employment Authorization Applications, (Sept. 9, 2019), https://www.regulations.gov/document?D=USCIS-2018-0001-0001; Department of Homeland Security, Asylum Application, Interview, and Employment Authorization for Applicants, (Nov. 14, 2019), https://www.regulations.gov/document?D=USCIS-2019-0011-0001.
[32] Carol Deutsch-Schmidt, Comment on Proposed Rule for Removal of 30-Day Processing Provision for Asylum Applicant-Related Form I–765 Employment Authorization Applications (Nov. 6, 2019), https://www.regulations.gov/document?D=USCIS-2018-0001-0901.
[33] Manuel Fernandez, Comment on Proposed Rule for Removal of 30-Day Processing Provision for Asylum Applicant-Related Form I–765 Employment Authorization Applications (Nov. 7, 2019), https://www.regulations.gov/document?D=USCIS-2018-0001-1332.
[34] Marianne Joyce, Comment on Proposed Rule concerning Asylum Application, Interview, and Employment Authorization for Applicants (Dec. 31, 2019), https://www.regulations.gov/document?D=USCIS-2019-0011-0305.
[35] Eddie Singleton, Comment on Proposed Rule concerning Asylum Application, Interview, and Employment Authorization for Applicants (Nov. 19, 2019), https://www.regulations.gov/document?D=USCIS-2019-0011-0064.
[36] Christopher Strawn, Comment on Proposed Rule for Removal of 30-Day Processing Provision for Asylum Applicant-Related Form I–765 Employment Authorization Applications (Nov. 12, 2019), https://www.regulations.gov/document?D=USCIS-2018-0001-2408.
[37] Department of Homeland Security, Removal of 30- Day Processing Provision for Asylum Applicant- Related Form I-765 Employment Authorization Applications, (Sept. 9, 2019), https://www.regulations.gov/document?D=USCIS-2018-0001-0001.
[38] Department of Homeland Security, Asylum Application, Interview, and Employment Authorization for Applicants, (Nov. 14, 2019), https://www.regulations.gov/document?D=USCIS-2019-0011-0001.
[39] See Melissa De Witte, Stanford Students Help Refugees with Their Asylum Claims at the U.S.-Mexico Border, Stan. News (Jan. 7, 2020), https://news.stanford.edu/2020/01/07/helping-asylum-seekers-u-s-mexico-border/; Tom Phillips, Mexican Man Kills Himself on Bridge After Being Refused Entry to US, The Guardian: Mex. (Jan. 9, 2020, 2:33 PM), https://www.theguardian.com/world/2020/jan/09/mexico-asylum-seeker-refused-us-entry.
[40] See Melissa De Witte, Stanford Students Help Refugees with Their Asylum Claims at the U.S.-Mexico Border, Stan. News (Jan. 7, 2020), https://news.stanford.edu/2020/01/07/helping-asylum-seekers-u-s-mexico-border/; Tom Phillips, Mexican Man Kills Himself on Bridge After Being Refused Entry to US, The Guardian: Mex. (Jan. 9, 2020, 2:33 PM), https://www.theguardian.com/world/2020/jan/09/mexico-asylum-seeker-refused-us-entry.
