Introduction
The Department of Homeland Security (DHS) issued a notice of proposed rulemaking on February 23, 2026, seeking to overhaul regulations governing asylum applications and related employment authorization documents (EADs) for pending asylum seekers. Published in the Federal Register under docket USCIS-2025-0370, the proposal addresses surging asylum filings and EAD requests that have overwhelmed USCIS resources, with affirmative asylum backlogs exceeding 1.45 million cases. Key changes include pausing initial EAD acceptances during prolonged asylum processing periods, extending the EAD waiting period to 365 days, mandating biometrics, and adding eligibility bars tied to criminal history and illegal entry. These measures, attributed to directives from President Trump via executive orders like E.O. 14159 and E.O. 14165, aim to deter frivolous claims, bolster national security, and restore efficiency to a system strained by illegal migration and meritless applications. The significance lies in curbing incentives for economic-driven asylum filings while prioritizing meritorious cases, potentially reshaping U.S. immigration dynamics amid record border encounters.
Background and Key Players
The U.S. asylum system, rooted in the 1980 Refugee Act, provides protection to those fleeing persecution based on race, religion, nationality, social group, or political opinion. DHS, through USCIS, handles affirmative asylum claims, while the Department of Justice's Executive Office for Immigration Review (EOIR) manages defensive cases. The proposal echoes 1994 reforms by the former Immigration and Naturalization Service (INS), which introduced a 180-day EAD waiting period to combat backlogs and abuse, reducing filings by nearly 80% and boosting approval rates from 15% to 38% by 1999. Key players include USCIS Director Kristi Noem, who signed the proposal, and President Trump, whose orders emphasize border security and lawful enforcement. Influential factors include surging migrant encounters—3.2 million in FY 2023—and litigation like Rosario v. USCIS (2018), which enforced 30-day EAD processing despite resource constraints.
Major Provisions of the Proposed Rule
Pausing EAD Applications
The rule ties initial EAD acceptance to asylum processing times: USCIS would pause filings if affirmative asylum adjudications average over 180 days for 90 consecutive days, resuming only when below or at 180 days. This directly addresses statutory goals under the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, which set a 180-day adjudication target. Based on current data, an initial pause could last 14 to 173 years, depending on receipt reductions, impacting both affirmative and defensive applicants.
Extended Waiting Period and Processing Time
Asylum applicants must wait 365 calendar days post-filing to apply for an EAD, up from 150 days, with USCIS gaining 180 days to adjudicate (from 30 days). This simplifies tracking, eliminating complex 'clock' starts/stops for applicant delays, and aligns with efforts to deter meritless claims.
New Eligibility Requirements
The proposal introduces bars mirroring asylum ineligibility: criminal convictions (e.g., particularly serious crimes), failure to meet the one-year asylum filing deadline (with exceptions for unaccompanied children), and illegal entry without presenting to authorities within 48 hours or showing good cause. Biometrics are mandated for all EAD applicants, enabling identity verification and criminal checks.
Termination and Discretionary Approval
EADs terminate immediately upon USCIS denial (unless referred to EOIR) or 30 days post-EOIR denial, with discretion for approvals to weigh national security.
Legal Precedents and Political Forces
This proposal builds on IIRIRA's 180-day framework and 1994 INS reforms, which successfully curbed abuse. It responds to President Trump's declarations of a border emergency and invasion, invoking authority under INA sections 208 and 274A. Litigation history, including Asylumworks v. Mayorkas (2022) vacating prior EAD reforms, underscores judicial scrutiny of processing timelines. Political forces include congressional concerns over parole and deferred action expansions, which have swelled temporary populations filing asylum for permanent status. Perspectives vary: advocates argue it burdens genuine refugees, while security hawks praise fraud deterrence; neither is endorsed here.
Potential Implications
Short-term effects include delayed workforce entry for asylum seekers, potentially straining support networks and increasing unauthorized work risks. Long-term, reduced frivolous filings could shrink backlogs, enabling faster meritorious approvals and reallocating USCIS resources. Economic impacts: lost earnings of $34.6-$126.6 billion annually, possibly transferring to U.S. workers or costing employers in productivity. National security benefits from biometrics and bars could prevent high-risk individuals from working, though critics note humanitarian costs. Different views highlight efficiency gains versus access barriers for vulnerable populations.
Forward-Looking Conclusion
DHS's proposed reforms target asylum system overload by linking EAD access to processing efficiency and eligibility rigor, potentially reducing filings by 50-80% as seen historically. Key takeaways include enhanced integrity, resource reallocation, and deterrence of meritless claims. Next steps involve a 60-day comment period ending April 24, 2026, followed by finalization amid possible litigation. Future challenges encompass balancing security with humanitarian needs, monitoring backlog reductions, and adapting to migration trends. Ongoing debates may focus on judicial oversight and policy adjustments to ensure equitable outcomes.
