Major Changes to Work Authorization for Asylum Seekers

On February 23, 2026, the Department of Homeland Security published a sweeping proposed rule in the Federal Register that would fundamentally restructure how asylum applicants may obtain employment authorization. The Notice of Proposed Rulemaking (NPRM), officially titled Employment Authorization Reform for Asylum Applicants(91 FR 8616, DHS Docket No. USCIS-2025-0370), is the regulatory implementation of the enforcement priorities established by Executive Order 14159, “Protecting the American People Against Invasion,” signed by President Trump on January 20, 2025.

The consequences for people with pending asylum cases are profound. For immigration attorneys, the rule creates new practice challenges and significant client counseling obligations. This article breaks down the five most critical questions about this proposed rule.

The public comment deadline is April 24, 2026. Comments must be submitted through www.regulations.govreferencing DHS Docket No. USCIS-2025-0370.

Under current law, an asylum applicant who has had a pending asylum application for 180 days (the “Asylum EAD Clock”) may apply for an Employment Authorization Document (EAD). Under the existing framework in 8 CFR 208.7, USCIS must adjudicate that EAD application within 30 days. The asylum applicant can maintain their EAD throughout the pendency of all immigration proceedings, including appeals to the Board of Immigration Appeals (BIA) and potentially federal courts.

The proposed rule changes virtually every aspect of that system.

The most basic change is doubling the waiting period. Under the proposed rule, an asylum applicant may not even apply for an EAD until 365 calendar days from the date USCIS receives a complete asylum application. That is a full year of waiting — during which the applicant is prohibited from working legally in the United States — before they can even submit the EAD application. Notably, the clock begins only on receipt of a complete application. The proposed rule also removes the existing provision that deemed an application “complete” if USCIS failed to return an incomplete application within 30 days, meaning a rejected or incomplete filing will not protect a filing date at all.

Under current regulations, USCIS must process an initial EAD application within 30 days. Litigation in Rosario v. USCIS has been a significant mechanism for attorneys to enforce this right. The proposed rule would extend that processing timeline to 180 days for any initial EAD application filed on or after the rule’s effective date. This is not a small change — it effectively eliminates one of the primary litigation tools asylum attorneys have used when USCIS dragged its feet.

Perhaps the most consequential change is a provision that would allow — actually require — USCIS to entirely stop accepting initial EAD applications when average affirmative asylum processing times exceed 180 days over any 90-day window. This is not discretionary. The rule states that the USCIS Director’s determination to pause is “not subject to discretion” and is automatically triggered by the processing time metrics.

DHS acknowledges in the rule’s preamble that affirmative asylum processing times currently far exceed 180 days, and that without the other changes in the rule, it could take “between 14 and 173 years” to reach the 180-day threshold needed to restart EAD acceptance. In plain terms: if this rule takes effect, new applicants could face an indefinite ban on applying for work authorization. DHS essentially admits the pause could last for many years.

Beyond the timing changes, the proposed rule adds several categorical bars to EAD eligibility for asylum applicants:

• Criminal bars: Any applicant where there is reason to believe they may be barred from asylum due to criminal grounds under INA § 208(b)(2)(A)(ii)-(iii) (particularly persecutors, those convicted of aggravated felonies, or those deemed a danger to the community) would be ineligible for a (c)(8) EAD.

• Illegal entry bar: Any applicant who entered or attempted to enter the United States without inspection would be ineligible, unless they expressed an intent to apply for asylum or fear of persecution to an immigration officer within 48 hours of entry. There is also a general “good cause” exception but the parameters of that exception are not clearly defined in the rule.

• One-year filing deadline bar: Any applicant who filed their asylum application more than one year after arrival would be ineligible for an EAD unless an asylum officer or Immigration Judge determines that an exception to the one-year bar exists. Currently, the one-year deadline affects asylum eligibility itself but does not separately bar EAD eligibility.

• Denied before EAD adjudication: If an asylum application is denied by an asylum officer or Immigration Judge during the 365-day waiting period, or before the EAD application is adjudicated, the applicant becomes ineligible for an initial EAD.

The proposed rule also converts EAD approval from a mandatory outcome (once eligibility requirements are met) to a discretionary determination. USCIS would have discretion to deny an EAD even to an eligible asylum applicant, invoking its authority under INA § 208(d)(2). This is a significant shift that removes the near-automatic nature of EAD approval once the waiting period clock expires.

Both initial and renewal EAD applicants would be required to appear for biometrics submission. Failure to appear would result in automatic denial. This adds an additional procedural hurdle that could result in denials for applicants who miss appointments due to work conflicts, transportation issues, or inadequate notice.

The short answer is: not directly through this rule, but yes in practical effect through the EAD process being used as an enforcement screening tool.

The proposed rule introduces a mechanism that allows — and effectively requires — USCIS to prioritize an affirmative asylum case for adjudication when derogatory information is discovered during the EAD application process. The practical effect is that applicants who apply for work authorization and whose background checks or biometrics trigger derogatory information hits will have their asylum cases fast-tracked for denial rather than remaining in the general queue.

The rule’s preamble is explicit that a primary goal is to identify and efficiently process “frivolous, fraudulent, or otherwise meritless cases.” The EAD application process is being engineered to serve as a screening mechanism. An applicant who applies for work authorization essentially submits themselves to enhanced scrutiny that can result in their underlying asylum case being pulled out of order and adjudicated ahead of schedule — which in practice means more rapid denial.

The rule does not create a new summary dismissal procedure on its own, but the combination of: (1) EAD denial triggering immediate loss of work authorization, (2) prioritized adjudication based on derogatory information found in the EAD review, and (3) EAD termination immediately upon asylum denial (discussed below), creates a practical pathway to more rapid removal proceedings for applicants the government views as lacking merit.

Executive Order 14159 is the backdrop for all of this. Section 5 of the EO directs the Attorney General to “prioritize the prosecution of criminal offenses related to the unauthorized entry or continued unauthorized presence of aliens,” and Section 9 directs DHS to maximize use of expedited removal. This proposed rule fits squarely within that framework by creating mechanisms that allow the government to quickly identify and move against applicants it views as filing non-meritorious claims.

The proposed rule itself does not create new criminal penalties for either asylum applicants or their attorneys. However, it must be read in conjunction with EO 14159, which creates the broader enforcement framework that could make existing criminal laws more aggressively enforced.

Existing Criminal Exposure for Applicants

Under existing law (8 U.S.C. § 1546), it is a federal crime to make false statements in immigration applications. Filing a frivolous asylum application — one that includes deliberately fabricated facts — also carries a lifetime bar to immigration benefits under INA § 208(d)(6). EO 14159’s Section 5 directs the DOJ to prioritize criminal prosecutions for unauthorized entry and presence, which suggests the administration will more aggressively pursue fraud-based prosecutions than previous administrations. The proposed rule’s biometrics and enhanced background check requirements are explicitly designed to identify potential fraud, which could generate referrals for criminal investigation.

Attorney Exposure: A Significant Practice Warning

While the proposed rule does not create new criminal penalties for attorneys, the enhanced enforcement environment created by EO 14159 has real implications for immigration counsel. EO 14159 Sections 4 and 5 direct broad civil and criminal enforcement against those who violate or facilitate violations of immigration law. Attorneys who assist clients in filing applications the government views as frivolous or fraudulent face potential exposure under 8 U.S.C. § 1324 (conspiracy to bring in or harbor unlawful aliens), 18 U.S.C. § 1001 (false statements), and 18 U.S.C. § 1546 (fraud and related activity in connection with immigration documents). The Trump administration has demonstrated willingness to pursue attorneys and legal organizations in the immigration space.

The practical takeaway for practitioners: this proposed rule, combined with EO 14159’s enforcement priorities, creates a more dangerous environment for attorneys who are not rigorous about client screening. Thorough intake procedures and proper documentation of the basis for claims are more important than ever. The rule’s stated purpose of reducing “frivolous, fraudulent, or otherwise meritless” filings is a signal that the government will be scrutinizing filings more aggressively, and the biometrics and background check provisions give them additional tools to identify cases they intend to pursue criminally.

If this rule is finalized as proposed, here is the path an asylum applicant would have to navigate to obtain work authorization:

• Step 1 — File a Complete Asylum Application: The 365-day clock begins only upon USCIS confirming receipt of a complete, properly filed Form I-589. An incomplete application that is returned does not preserve a filing date.

• Step 2 — Wait 365 Calendar Days: The applicant must wait a full year from the confirmed receipt date before submitting a Form I-765 for a (c)(8) EAD. There are no exceptions to this waiting period other than those applying to Unaccompanied Alien Children (UACs).

• Step 3 — Survive the Eligibility Bars: The applicant must not have entered without inspection (unless they reported to an immigration officer within 48 hours), must not have filed their asylum application more than one year after arrival (unless an exception is granted by an AO or IJ), and must not be subject to criminal bars under INA § 208(b)(2)(A).

• Step 4 — System Must Not Be Paused: USCIS must not have paused acceptance of initial (c)(8) EAD (asylum based) applications due to average processing times exceeding 180 days. If USCIS has triggered the pause, no initial EAD applications will be accepted until processing times come back down, regardless of how long the applicant has been waiting. Some estimates indicate that based on current backlogs, a delay in employment authorization processing could be anywhere from 14 to 173 years before new EAD applications would be accepted.

• Step 5 — Appear for Biometrics: After submitting the EAD application, the applicant must appear for a biometrics appointment at an Application Support Center. Failure to appear results in denial.

• Step 6 — Wait Up to 180 Days for Adjudication: USCIS has 180 days to adjudicate the EAD application. There is no longer a 30-day processing mandate for new applications.

• Step 7 — Pass Discretionary Review: Even if all eligibility criteria are met, USCIS retains discretion to deny the EAD.

In practical terms, even in the best-case scenario where the system is not paused, a new asylum applicant cannot obtain work authorization for at least 365 days and potentially up to 545 days (365 days waiting period + 180 days for adjudication). For applicants whose asylum cases are denied before the EAD is adjudicated, no EAD would ever issue.

This is one of the most important practical questions for current clients, and the answer is nuanced. The proposed rule includes a transitional provision, but it does not fully insulate existing EAD holders.

The rule provides that aliens who already have an EAD based on a pending asylum application before the rule’s effective date will remain authorized to work until the expiration date on their current card, unless the EAD is terminated or revoked based on the grounds that were in effect when it was issued. This is the good news: no one’s current work authorization is immediately cut off.

The critical vulnerability for existing EAD holders is in the renewal process. When a current EAD expires, the applicant must file for renewal. The proposed rule applies many of its new provisions to renewal applications filed on or after the effective date, regardless of when the original EAD was issued. This means that when a renewal is filed under the new rule, the applicant would be subject to:

• The new biometrics requirement (failure to appear = denial)

• Enhanced criminal bar review

• Discretionary denial authority

• Termination upon asylum denial at any level

• Possible application of the illegal entry bar if the applicant entered without inspection

Moreover, the system-wide pause applies to initial applications only, not renewals. So renewal applicants are in a somewhat better position in that their renewals can still be accepted even during a pause. However, they remain subject to the new eligibility requirements.

The proposed rule also significantly tightens when an EAD is terminated. Under the proposed rule:

• An EAD terminates immediately if an asylum officer denies the underlying asylum application, unless the case is referred to an Immigration Judge.

• An EAD terminates 30 days after an Immigration Judge denies asylum, unless the applicant files a timely appeal to the BIA.

• An EAD terminates immediately upon BIA denial or dismissal of an appeal.

This is a departure from current practice in which work authorization could be maintained during lengthy appellate proceedings, including federal court review. Under the proposed rule, once the BIA denies a case, work authorization ends — period. There is no provision for maintaining an EAD during a petition for review to the circuit courts. An exception exists for Unaccompanied Alien Children, but not for other applicants.

For applicants who have already filed an initial EAD application but have not yet received a decision, the rule provides partial protection. Initial EAD applications that are pending on the rule’s effective date remain subject to the current 30-day processing requirement and the current 180-day waiting period. The new 365-day waiting period and 180-day processing time apply only to initial applications filed after the effective date.

This proposed rule, if finalized, would represent the most significant restriction on asylum-based employment authorization since the 1994 INS rulemaking that first created the 180-day waiting period. It is directly responsive to EO 14159’s mandate to reduce “frivolous” filings, restrict employment authorization to unauthorized aliens, and enforce the immigration laws broadly.

For clients with currently pending asylum cases: their existing EADs are protected through the current expiration date, but they should prepare for the renewal process to be significantly more difficult under the new rule. Cases where asylum has already been denied and is on appeal face the most immediate risk.

For new clients: the era of expecting work authorization within 180 days of filing is over if this rule is finalized. Clients must understand that they may wait well over a year for any work authorization, and may never receive it if processing times remain high and the system pause is triggered.

For the immigration defense community: the public comment period closes April 24, 2026. This rule is deeply problematic from a humanitarian standpoint and likely vulnerable on multiple legal grounds, including the statutory scheme of INA § 208(d)(2) and due process concerns about indefinite work authorization bans. Organizations and attorneys are strongly encouraged to submit substantive comments.

 

This article is provided for informational purposes only and does not constitute legal advice. Immigration law is complex and highly fact-specific. If you or your client has a pending asylum case or employment authorization question, please consult with a qualified immigration attorney. To schedule a consultation with our firm, visit www.removal-defense.com.