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 20529-2140
Submitted via regulations.gov*
Re: Removal of 30-Day Processing Provision for Asylum Applicant Related Form I-765 Employment Authorization Applications
The Economic Policy Institute submits this comment on the Department of Homeland Security’s Notice of Proposed Rulemaking: Removal of 30-Day Processing Provision for Asylum Applicant–Related Form I-765 Employment Authorization Applications, RIN 1615-AC19, DHS Docket No. USCIS-2018-0001, posted September 9, 2019.
The Economic Policy Institute (EPI) is a nonprofit, nonpartisan think tank created in 1986 to include the needs of low- and middle-income workers in economic policy discussions. EPI conducts research and analysis on the economic status of working America, proposes public policies that protect and improve the economic conditions of low- and middle-income workers, and assesses policies with respect to how well they further those goals. EPI examines the economic landscape and analyzes what is happening to workers and working families, regardless of immigration status. EPI has long had an interest in examining and safeguarding the wages and working conditions of all workers, and has published research relating to labor standards for U.S. workers and migrant workers. EPI has offered a comprehensive plan to reform the U.S. immigration system in a way that uplifts labor standards, raises wages, and leads to a more broadly shared prosperity.
EPI opposes the Department of Homeland Security’s (DHS) proposed rule regarding the removal of the 30-day processing requirement for Employment Authorization Document (EAD) applications submitted by applicants for asylum because it could leave tens of thousands, and possibly even hundreds of thousands, of asylum seekers without access to basic labor standards protections—perhaps indefinitely—despite their need to work in order meet their basic survival needs.
I. Substance of the proposed rule
The proposed rule from the U.S. Department of Homeland Security would remove the existing regulatory requirement that the U.S. Citizenship and Immigration Services (USCIS) subagency grant or deny an initial employment authorization application within 30 days of when the asylum seeker files the Form I-765, Application for Employment Authorization. The Form I-765 is the USCIS form used to apply for an Employment Authorization Document—otherwise known as a work permit—that allows the noncitizen beneficiary to work lawfully in the United States. The proposed rule would also remove an existing provision that requires applications for EAD renewals to be received by USCIS 90 days prior to their expiration date.
II. Delaying EADs for asylum seekers will degrade U.S. labor standards by leaving asylum seekers without workplace rights in practice, making them more vulnerable to employer exploitation
Asylum seekers who apply for EADs but do not get them in a timely manner will face the same challenges that unauthorized migrant workers face in the workplace. Unauthorized migrant workers who lack work authorization are not fully protected by U.S. labor laws and are often afraid to complain about unpaid wages and substandard working conditions because employers can retaliate against them by taking actions that can lead to their deportation. This imbalanced relationship gives employers extraordinary power to exploit and underpay these workers, ultimately making it more difficult for similarly situated U.S. workers to improve their wages and working conditions.
The exploitation faced by migrant workers without work authorization is not theoretical. A landmark study and survey of 4,300 workers in three major cities found that 37.1% of unauthorized immigrant workers were victims of minimum wage violations, as compared with 15.6% of U.S.-born citizens. Further, an astounding 84.9% of unauthorized immigrants were not paid the overtime wages they worked for and were legally entitled to.1
As a result of the proposed rule, employers will have increased access to an exploitable workforce of asylum seekers who lack work authorization—a workforce that could eventually number in the hundreds of thousands—who are not undocumented and are lawfully present in the United States, because they have availed themselves of a legal process that is available under U.S. law to persons fleeing persecution. However, these lawfully present asylum seekers will face the same challenges in the workplace as unauthorized immigrant workers by virtue of lacking that work authorization.
Considering that few asylum applicants qualify for public assistance or virtually any social safety net programs, those without EADs will face a difficult choice: either work without an EAD or risk homeless and starvation Since asylum seekers will have virtually no choice but to work without authorization, the ultimate result of the proposed regulation will be to increase the number of workers employed in the informal labor market in the United States, which will decrease the bargaining power of similarly situated U.S. workers and degrade labor standards overall. From the perspective of asylum seekers, many of whom are already dealing with the effects of trauma, the proposed rule will add insult to injury because working without an EAD in order to survive will increase the likelihood that they will get caught working unlawfully, which could jeopardize their claims for asylum in immigration court.
III. The proposed rule will push many asylum seekers who could be self-sufficient workers into extreme poverty
Applicants with pending asylum claims have little to no access to public assistance or social safety net benefits. But if they are issued an EAD after the minimum 180-day waiting period (150 days for the pending asylum case plus the 30-day EAD adjudication), they can initiate employment without restrictions for almost any employer. Being able to earn a living and become self-sufficient by virtue of being employed allows asylum seekers to provide for themselves and their families, and to live with dignity while they attempt to reestablish their lives after suffering persecution in their countries of origin.
The proposed rule could create long delays for EAD approvals for asylum seekers, including indefinite waits for many. Not being able to work lawfully will have severe negative impacts on the lives of asylum seekers and their families. Without an EAD that gives them access to an income, asylum seekers will not be able to afford housing, food, clothes, and other basic necessities. Unless a family member, friend, or charity offers them assistance, they are likely to be homeless, hungry, and without access to medical care. Without an EAD, it will be difficult for asylum seekers to obtain drivers’ licenses, an attorney to represent them—in what are usually lengthy and complex legal proceedings—or financial services and other basic necessities that many people take for granted, but that are essential for navigating modern life.
DHS estimates that the proposed rule will result in asylum seekers losing $255.88 to $774.76 million in income annually. If we make the assumption that most asylum seekers are likely to be employed in the low-wage labor market (as DHS assumes), these amounts represent tens of thousands of asylum seekers who will not have access to this income and who will be quickly pushed into extreme poverty as a result. In their public comment to this proposed regulation, Upwardly Global—a national organization that assists asylees and asylum seekers who have EADs to find work—challenges DHS’s estimate and believe it undercounts the income losses to asylum seekers with EADs.
Where will this one- to three-quarters of a billion dollars (or more) that sustains life for asylum seekers come from? DHS cannot reasonably assume that charitable organizations will pick up the slack. Instead, asylum seekers who were previously self-sufficient will have to beg for food on American streets.
IV. DHS should retain the 30-day timeline to prevent lengthy and indefinite wait times for EADs
DHS has failed to propose a new timeline that they view as a reasonable maximum processing time with which to adjudicate EADs for asylum seekers. Having no maximum timeline will have the practical impact of allowing DHS to divert resources away from adjudicating EADs for asylum seekers, resulting in unreasonably long and even indefinite wait times. DHS’s own estimates of wait times before the Rosario v. USCIS court order2 in mid-2018—which enjoined USCIS from taking longer than 30 days to process EADs for asylum applicants—reveal that prior to the court’s ruling, USCIS adjudicated 47% of initial EAD applications within 30 days, 31% within 60 days, and 22% of applications after more than 60 days. But since the Rosario court order, 30 days has been enough time for USCIS adjudicators to vet and process 99% of initial EAD applications from asylum seekers. Therefore, USCIS has shown that—even in the face of higher caseloads—it is capable of adjudicating EADs within the 30-day timeline. And in cases where more time and information are required, USCIS already has a valid option: Adjudicators may issue requests for evidence (RFE) to applicants, which has the effect of pausing the 30-day clock until the requested information is received.
Before taking the extreme measure of eliminating the 30-day time requirement—despite already having an option to pause applications that require additional vetting—USCIS should fully consider whether hiring additional adjudicators would allow the agency to continue completing its core functions and increased workloads while also complying with the 30-day timeline, what the cost would be, and the impact (if any) on fees across the agency. The fact that USCIS has not already done such an analysis in the proposed rule is strong evidence that it has not considered all the feasible alternatives to leaving asylum seekers without access to lawful employment.
V. DHS has taken a number of disturbing measures to restrict the asylum process.
Currently, asylum seekers whose asylum cases have been pending without a decision for at least 150 days are eligible to apply for an EAD (although if the applicant has caused delays in their asylum case, they must wait longer). As noted above, pursuant to an existing regulation USCIS is required to adjudicate the EAD application within 30 days of receiving it. Recent news reports have suggested that DHS is now considering doubling the wait time before asylum seekers can initially apply for EADs (which then triggers the 30-day timeline).3 If both regulations are implemented, asylum seekers will go from waiting six months before they can work lawfully in the United States to waiting one year—just to apply—and then will be expected to endure an unknown and indefinite wait time before they are authorized to work. In the meantime, asylum seekers who do not have access to the social safety net will somehow need to find food and clothing for themselves and their families, plus a roof to put over their heads.
In addition, the administration is implementing a third-country transit bar4 and the Migrant Protection Protocols (MPP), commonly referred to as the “Remain in Mexico” policy,5 as well as expedited processing for “family unit” asylum cases. Taken together, all of these policies and actions are evidence that the Trump administration is intentionally making it more difficult for individuals who seek humanitarian protection at the Mexico-U.S. border to ever be granted asylum under U.S. law—and is making it increasingly more difficult for any person to ever even apply to be considered for asylum.
It should not be official U.S. policy to avoid considering the valid claims of persons fleeing persecution and to force them into the informal labor market in order to survive.
VI. Conclusion: DHS should abandon the proposed rule and keep the 30-day timeline in place
DHS has not offered a valid justification for why it should move forward with eliminating the 30-day timeline, nor has it considered all of the costs and benefits involved in making this regulatory change. The few estimates DHS has provided in the proposed rule suggest that the financial hardships to asylum applicants due to loss of income will be significant—and their income will not be easily replaced, if at all, leaving asylum applicants desperate for food and basic necessities, and homeless on American streets. DHS has failed to show a compelling reason for causing such hardship and they have not proved that the 30-day processing timeline is unsustainable under the current system. In light of these facts, DHS should not implement this proposal and should continue to allow asylum seekers to obtain EADs after 180 days total, 150 days plus the 30-day timeline for adjudications.
Director of Immigration Law and Policy Research
Economic Policy Institute
* The letter published here has been slightly modified from the version that was submitted to regulations.gov. Some passages have been lightly edited for clarity; the substantive content has not changed.
1. Annette Bernhardt et al., Broken Laws, Unprotected Workers: Violations of Employment and Labor Laws in America’s Cities, Center for Urban Economic Development, National Employment Law Project, and UCLA Institute for Research on Labor and Employment, 2009.
2. Rosario v. USCIS, No. C15–0813JLR (W.D. Wash. July 26, 2018), https://www.americanimmigrationcouncil.org/sites/default/files/litigation_documents/rosario_v_uscis_judgment.pdf.
3. Hamed Aleaziz, “Trump Officials Are Seeking to Double the Time Asylum-Seekers Must Wait to Legally Work,” BuzzFeed News, April 10, 2019.
4. Human Rights First, “Trump Administration’s Third-Country Transit Bar is An Asylum Ban that Will Return Refugees to Danger,” (Fact Sheet), September 2019.
5. Dara Lind, “’Remain in Mexico’: Trump’s quietly expanding crackdown on asylum seekers, explained,” Vox, March 22, 2019.