Regressive Changes to Employment Authorization for Foreign Nationals Seeking Asylum

In an upsetting move, USCIS issued a new rule drastically limiting foreign national’s eligibility for employment authorization based on a pending asylum application. The rule is scheduled to go into effect on August 25, 2020. Absent good cause, foreign nationals who entered the United States without authorization are ineligible for work authorization based on a pending asylum application. As asylum requires individuals to be physically present in the United States, for many, entering without inspection is the only way to seek asylum in the United States.

The new rule also creates a longer waiting period for an asylum applicant to apply for employment authorization, increasing the wait period from 150 days to 365 days. Other changes include new criminal bars, limitations on the validity of the employment authorization documents, and creating automatic termination of employment authorization when an applicant’s asylum application is administratively final, even if they are seeking federal court review of the administrative decision.

The new limitations on employment authorization for asylum seekers is part of the current Administration’s broader attack on asylum and legal immigration. As immigration courts have more than a million cases pending, most asylum cases in court take several years to resolve. Similarly, the asylum office has nearly 340,000 pending cases and can also take many years to adjudicate a case. Given the proposed changes, most asylum seekers will be unable to legally work while they seek protection from persecution. The collateral consequences of this myopic rule change are dire. The United States will lose tax revenue from these individuals, many of whom will be forced to exploitation and poor working conditions from employers who wish to take advantage of the fact that are not lawfully authorized to work.