DHS proposes implementing asylum application fees and extending applicants’ pre-employment waiting period.
The United States granted asylum to nearly 250,000 individuals between 2008 and 2017. The number of annual asylum applications has doubled since 2016, causing the Trump Administration to declare a border crisis and amend rules on asylum eligibility and application procedures.
Most recently, the U.S. Department of Homeland Security (DHS) has proposed additional changes to the asylum program.
Under the federal Immigration and Naturalization Act, any refugee fleeing persecution on the basis of race, religion, nationality, or social or political group may apply for asylum. Following submission of an asylum application and a mandatory waiting period, applicants may apply for permission to work.
DHS’s two recent proposed rules would make it harder for applicants to file for asylum and obtain work authorization. The department says that these new rules are necessary to meet the growing costs of administering its asylum program while ensuring that only deserving applicants receive the benefit of the right to work. Critics counter that the Trump Administration is merely creating additional obstacles to legal immigration for vulnerable individuals who have the desire to work but few financial resources.
The agency’s first proposed rule would institute an asylum application fee. Individuals already in the United States but not in deportation proceedings who submit affirmative asylum applications would need to pay $50 to have their applications processed. The United States has never required payment for asylum status, relying instead on “other fee-paying benefit requestors to subsidize asylum seeking applicants.” If the proposed fee goes into effect, the United States would be one of only four countries to charge applicants for asylum, and one of only two not offering a fee waiver.
DHS’s second proposed rule would amend regulations governing applications for work authorization. This proposal would make some asylum seekers, including those who enter the United States illegally or who have a record of conviction for certain crimes, ineligible for employment authorization. It would also affect asylum seekers who remain eligible to work. Although federal regulations currently require that 150 days elapse between filing an asylum application and making a subsequent request for work authorization, DHS’s proposed rule would extend the waiting period to 365 days.
These two proposals are but the latest in a series of efforts by the Trump Administration to restrict the asylum program. A 2018 memorandum from the agency’s Inspector General confirmed that U.S. Customs and Border Protection engages in metering—the practice of turning back asylum seekers at the U.S.-Mexico border after reaching a daily limit on processing asylum claims. In January 2019, DHS implemented a policy requiring asylum seekers identified for removal at the southern border to wait in Mexico for their removal hearings. And in July 2019, DHS issued a rule declaring Central and South Americans ineligible for asylum if they attempted to enter the United States through the southern border without first seeking asylum from Mexican authorities.
Agency justifications for DHS’s two most recent proposals are consistent with rationales offered for previous policy shifts. The growing number of asylum seekers, DHS argues, forces the agency to embrace changes that limit applications.
Pointing to the substantial administrative burden caused by a “continuous, sizeable increase in affirmative asylum filings,” the department views application fees as necessary. In fact, U.S. Citizenship and Immigration Services (USCIS) states that, notwithstanding the fee proposal, the department will still be underfunded by $1.3 billion per year.
DHS asserts that its work authorization proposal simply responds to the growing number of asylum seekers. The proposed rule seeks to deter migrants “from filing frivolous, fraudulent or otherwise non-meritorious asylum applications in order to obtain employment authorization.” Acting DHS Deputy Secretary Ken Cuccinelli insists that, by discouraging applications from undeserving individuals, the agency will be able to use its limited resources to serve legitimate asylum seekers.
Nevertheless, critics remain unconvinced, challenging the agency’s stated justifications and expressing concern about the negative effects these rules will have on asylum seekers.
Jason Boyd, policy counsel at the American Immigration Lawyers Association, has argued that the proposed fee for asylum applications “could result in the deportation and even death of vulnerable protection seekers who lack financial recourse.” Furthermore, Boyd has suggested that DHS’s administrative struggles result not from an increase in applications but from the agency’s own inefficient policies, thus casting doubt on the premise that increased fees will do much to improve service. Former chief of USCIS’s Refugee Affairs Division Barbara Strack reportedly said that she sees the fee proposal as “a part of the Administration’s campaign of hostility against the asylum program.”
Critics also argue against DHS’s assertion that the work authorization proposal will result in better service for “deserving” applicants. Aaron Reichlin-Melnick, an attorney with the American Immigration Council, has reportedly noted that DHS’s work authorization proposal would limit the prospects of applying for all asylum seekers—”regardless of how strong their case is.” He emphasized that the proposed rule could result in “tens of thousands of people potentially losing their jobs and hundreds of thousands no longer being eligible for work authorization”—an especially vexing predicament for asylum-seekers needing to work to sustain themselves and their families over the years it can take for asylum claims to be processed.
Several large corporations including AirBnB, Chobani, and Ben & Jerry’s have joined immigrant advocates in opposing the proposed work authorization rule, fearing an inability to retain and hire enough workers.
The comment period for the fee change proposed rule closed on December 16, 2019. The comment period for the work eligibility proposed rule closes on January 13, 2020.
