Legal Services NYC Comments on the Department of Homeland Security’s Proposed New Rule Regarding Asylum Applicants and (C)(8) EAD Applicants

Proposed Rule:

The U.S. Department of Homeland Security is proposing a rule change to make it much harder for people seeking asylum in the United States to get work permits while their cases are pending. Under current rules, asylum applicants can generally apply for work authorization after waiting several months. The proposal would extend that waiting period to a full year, require additional background screening and biometrics, create new barriers for applicants who entered the country outside an official port of entry, and allow the government to stop accepting new asylum-based work permit applications altogether whenever asylum processing times exceed six months. Because current asylum backlogs are already far longer than six months, critics argue the change could effectively prevent many asylum seekers from legally working for years while they wait for their cases to be decided.

See DHS’s proposed change here.

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LSNYC submitted these comments in response to the Department of Homeland Security’s proposed rule and urges them not to move forward as it will be deeply harmful to LSNYC’s thousands of current and future asylum-seeking clients.

Legal Services NYC (“LSNYC”) is the largest civil low-income legal services provider in the United States. LSNYC’s mission is to provide expert legal assistance that improves the lives and communities of low-income New Yorkers. LSNYC annually provides legal assistance to thousands of low-income clients throughout New York City in areas including immigration, housing, government benefits, and family law. Our staff—located in our 18 community-based offices and numerous outreach sites located throughout each of New York City’s five boroughs— assists more than 120,000 clients annually. Of these tens of thousands of clients, almost a thousand of them are asylum applicants, meaning LSNYC is one of the most prominent providers of legal services to the asylee community in the nation.

LSNYC submits this comment in response to the Department of Homeland Security’s (“DHS”) proposed amendments to policies concerning asylum seekers and work permission applications for (c)(8) asylum applicants. LSNYC urges DHS to not move forward with this proposed rule, as it will be deeply harmful to LSNYC’s thousands of current and future asylum-seeking clients.

I. DHS’s Proposed Rule Effectively Terminates Employment Authorization for Asylum Seekers

DHS’s rule effectively terminates asylum applicants’ ability to seek employment authorization. The proposed changes are not simple amendments to current policies—they would effectively dismantle the current Employment Authorization Document (“EAD”) program for asylum seekers and effectuate a wholesale change to USCIS’s current asylum process. The proposed rule will negatively impact asylum seekers in three primary ways: it will, 1) pause the processing of new asylum-based employment authorization applications for up to 173 years; 2) increase the mandatory minimum amount of time asylum seekers must wait before applying for work authorization from 180 days to 365 days—doubling the time asylum seekers must wait to become tax-paying members of the American workforce; and 3) grant new discretionary authority to asylum officers to deny work authorization on bases which conflict with federal law. The proposed changes are ultra vires and unlawful.

First, the proposed pause on acceptance of initial (c)(8) EAD applications is an unreasonable withholding of agency action that federal courts will not sustain. Federal courts have not hesitated to enjoin USCIS delays in this exact context, even where the delay at issue was a small fraction of what DHS now proposes. In Rosario v. U.S.C.I.S., a district court applied the six factors from Telecommunications Rsch. & Action Ctr. v. F.C.C., 750 F.2d 70 (D.C. Cir. 1984) in determining whether USCIS’s failure to adjudicate most EAD applications within 30 days was unreasonable. The court found that such a delay was unreasonable, finding the factors overwhelmingly weighing in favor of injunctive relief. The court gave particular importance to the “negative impact on human welfare” from USCIS’s delay because without work authorization, asylum seekers “are unable to financially support themselves or their loved ones.” 365 F. Supp. 3d 1156, 1162-63 (W.D. Wash. 2018). The court based its decision largely on the statutory requirement to adjudicate asylum applications within 180 days, noting that “[a]lthough Congress has not included a timetable specific to EAD applications, it has stated that the final adjudication of the asylum application ‘shall be completed within 180 days after the date an application is filed.’” Rosario, 365 F. Supp. 3d at 1162-63 (quoting 8 U.S.C. § 1158(d)(5)(A)(iii)). The current average processing time already exceeds 180 days. By DHS’s own admission, “it may take between 14 and 173 years to reach a 180-day processing time,” 91 Fed. Reg. 8616(II)(B)(2)(J), extinguishing the issuance of EADs for over a decade at best and up to an absurd 173 years at worst. If delays in issuing EADs of over 30 days are unlawful against the backdrop of the INA’s 180-day processing time requirement for asylum applications, an effectively indefinite moratorium on the issuance of EADs certainly is as well.

Second, the extension of the mandatory minimum waiting period before asylum seekers can apply for an EAD from 180 to 365 days is arbitrary and capricious because DHS has failed to consider the severe effects extending the deadline will have on asylum seekers, as well as on the local and state governments and communities that will bear the burden of their dependence and inability to contribute to the economy. DHS cannot justify such a negative impact and deterrent on legitimate claims for asylum with its asserted goal of deterring “meritless” asylum filings because there is no tailored nexus between the proposed rule and its asserted goal. See Casa de Maryland, Inc. v. Wolf, 486 F. Supp. 3d 928, 966 (D. Md. 2020) (finding extension of the EAD wait period from 180 days to 365 days likely to be arbitrary and capricious because of DHS’s failure to justify the impact on legitimate asylum applications); 91 Fed. Reg. 8616(V)(B). This is especially true with respect to the asserted justification of “the recent expansive use of deferred action, parole, and temporary protected status” contributing to the asylum backlog. 91 Fed. Reg. 8616(V)(B). There simply is no nexus between preventing all asylum seekers from obtaining EADs and the alleged expansive use of non-asylum-related programs, see Casa de Maryland, 486 F. Supp. 3d at 966; particularly where asylum applications filed by beneficiaries of these non-asylum programs form only a fraction of all asylum applications and DHS provides no data suggesting that asylum seekers who previously benefited from these programs tend to not have meritorious asylum claims. DHS also admits that many of these programs have now been terminated, eroding this asserted justification. Id. DHS’s only other asserted benefit, that the change would permit “USCIS to focus resources on the underlying asylum applications which, if adjudicated first, obviates the need to adjudicate the pending” EAD application, only matters once the adjudication timeline for asylum applications falls below the statutorily required 180-day period. Again, DHS admits this could take up to almost 200 years. The only thing the proposed rule will deter (and prevent) is asylum applicants who are in the United States anyway—including applicants with bona fide claims who have a statutory right to asylum—from being gainfully and lawfully employed while the government indefinitely delays adjudicating their applications.

By DHS’s admission, the resulting loss from extending the wait time period from 180 days to 365 alone amounts to an estimated $6.3 billion (“with Federal tax impact of $0.66 billion”),  to be borne by citizens and immigrants alike and their local governments. DHS offers no reasonable justification for the aggregated negative impact this change would bring. And these numbers fail to recognize the positive impact the asylum seeker workforce bears on the U.S. workforce at large and the long-term negative impact from denying asylum seekers work authorization. Coupled with the indefinite pause on issuance of initial EADs, the effects from extending the time asylum seekers must wait before applying are devastating. Studies demonstrate that adult asylum applicants participate in the workforce at higher rates than adults from the general U.S. population, at a staggering rate of 71%. Together, asylum seekers contribute more than $108 billion to the U.S. economy in addition to $33 billion in taxes, each year.⁶ DHS incorrectly asserts, without evidence, that the economic losses from this proposed rule can be counterbalanced by a reduction in public assistance and resources currently afforded to asylum applicants given the “potential” reduction in overall asylum applications. But this ignores that while their applications remain pending, asylum seekers are categorically ineligible to receive means-tested benefits from the federal government. And only a few state and local programs afford asylum seekers eligibility for government benefits, usually capped at a few hundred dollars per month. Contrary to DHS’s baseless assertion, working asylum seekers contribute much more to the U.S. economy than any benefits they might be eligible to receive. By effectively withholding EADs indefinitely, DHS is poised to cause the United States over $130 billion in losses year-over-year. DHS states, again without evidence, that these losses can be mitigated by U.S. citizens taking up jobs that asylum applicants would have taken. But empirical evidence contradicts this assertion. Economists and policy experts at Harvard Business School, Cornell Law School, and George Mason University found that rather than reducing the number of jobs available to U.S. citizens, asylum applicants in fact increase the number of jobs available to U.S. citizens, increase wages for U.S. citizens, and reduce overall unemployment rates. Asylum seekers’ participation in the workforce benefits everyone. Preventing asylum seekers from working places them in great peril and negatively impacts their communities. DHS should not proceed with dealing this unreasoned, devastating blow to LSNYC’s clients and the U.S. economy.

Third, the new discretionary authority granted to asylum officers allows USCIS to deny work authorization applications in violation of federal and refugee law. The proposed amendments include a new requirement that allows for the denial of work permission for asylum applicants who did not arrive in the country through a United States designated port of entry. See Federal Register, Vol. 91, No. 35, February 23, 2026, at 8661. This requirement not only disregards the reality that asylum seekers face in arriving in the United States—many of whom have fled their country of origin in the most dire of circumstances, such as fleeing gang violence or political persecution— but it also undermines the current eligibility criteria for asylum. DHS’s proposed rule would punish asylum seekers who arrive in the United States via a non-designated port of entry, but anyone who arrives in the United States “whether or not at a designated port of arrival,” may seek, and be granted, asylum. 8 U.S.C. §1158(a)(1). The proposed bar on work authorization for asylum applicants directly contradicts the federal government’s statutory obligations and policies concerning asylees and their means of entry into the United States. See East Bay Sanctuary Covenant v. Biden, 993 F. 3d 640, 669-670 (9th Cir. 2021) (holding that a rule requiring migrants to “enter the United States at ports of entry” is effectively a “categorical ban on migrants who use a method of entry explicitly authorized by Congress in section 1158(a).”). Similarly, the requirement conflicts with refugee law which prohibits the penalization of asylum seekers based on their manner of entry into the country. See Convention relating to the Status of Refugees, 1951, art. 31, U.N. H.R. 1951, 1951 U.N.T.S. 8. By requiring that asylum seekers present themselves at a designated port of entry in order to have the ability to financially support themselves down the line, DHS is directly punishing asylum seekers based on their manner of entry into the United States. Specifically, DHS is punishing the individuals who are most desperate and in need—and in turn, the potential asylees most likely to enter the United States through a non-designated port of entry.

II. DHS Fails to Consider Important Aspects of Impact of Proposed Rule on Asylees Desperately Seeking Safety and Protection in the United States.

DHS has failed to consider—and utterly dismissed—the impact its proposed rule will have on meritorious asylum seekers. That is quintessential improper, arbitrary and capricious agency action. See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (agency must “examine the relevant data and articulate a satisfactory explanation for its action”).

The impact of the proposed rule on EAD application acceptances and processing will directly impact all asylum seekers, including LSNYC’s clients. As an initial matter, DHS admits that “[t]he pause on EAD application acceptances and processing may last from 14 to 173 years, or longer,” dependent on the volume of asylum applications. See Federal Register, Vol. 91, No. 35, February 23, 2026, at 8650. In other words, asylum seekers will be barred from applying for work authorization for nearly two centuries. In effect, (c)(8) EADs will be terminated for the span of two lifetimes, extinguishing asylum seekers’ access to EADs for generations to come. This will make it impossible for asylum seekers to work legally to support themselves. In turn, this will also promote their dependency on state and local governments, charities, families, and others and will greatly increase their probability of poverty and homelessness. Indeed, nearly two-thirds of the rise in sheltered homelessness in recent years was driven by “newly arrived immigrants fleeing hardship and entering the United States with limited means and barriers to employment.” See Bruce D. Meyer, Angela Wyse, Douglas Williams, “Asylum seekers and the rise in homelessness,” Journal of Public Economics, Vol. 255, 1, 7 (2026) (emphasis added). And not only will this bar harm the asylum-seeking population, but it will also have a negative economic impact on the entire country. USCIS estimates that the compensation lost from asylum seekers not working would be somewhere between $34.6 billion to $126.6 billion annually. See id. at 8665. Downstream economic impacts include consumer spending, as well as federal and state tax revenue (including social security revenue), and lost productivity for employers who will be unable to fill jobs. The proposed rule estimates that the loss to the federal government could be as high as $7.43 billion. See id. at 8692.

DHS claims it considered outrightly terminating work authorization for asylum seekers but chose not to because “it is not clear at this time whether data exists to support such a change.” See id. at 8646. DHS also claimed that it was “concerned with the anticipated public comments that did not support such a change.” Id. Indeed, it even admits that the termination of work authorization is “severe” and has no support in addressing DHS’s alleged concerns via its proposed amendments. Id. But this proposed pause, for 173 years, is a de facto termination of EADs for asylum seekers. And by DHS’s own admission, there is no data to support such a drastic change. Id. DHS cannot have it both ways. It cannot admit that it has no support for an outright termination of EADs, but claims it has support for an amendment that is tantamount to such a termination.

DHS’s proposal, to extend the deadline to apply for work permission to 365 days, would further burden LSNYC’s clients and cause significant harm to low-income asylum seekers who have no other method by which to house or feed themselves than to work. Currently, all LSNYC’s asylum-seeking clients are required to wait over 180 days after submitting their application for an interview with an asylum officer. Waiting 180 days to apply for work permission is already a great burden to asylee applicants. LSNYC clients’ asylum applications are not processed within 180 days. These applications continue to be processed—or are backlogged—for over a year, if not years, while LSNYC clients are forced to wait 180 days to apply for the ability to work. They wait more than half a year, without any source of income or financial support, just to file an initial application for work permission. Then they wait for at least another half a year for that application to be processed and the authorization to be potentially granted. In the most extreme circumstances, for those who file their initial asylum application up to one year after arriving in the United States, that potentially results in over a two-year wait to be able to work and support themselves while their asylum application is processed. The current scheme to process and grant EAD applications is already overburdened with delays that leave those fleeing persecution and seeking safety in the United States without a means to obtain financial independence for far too long. See Casa de Maryland, Inc. v. Wolf, 486 F. Supp. 3d 928, 966 (D. Md. 2020) (Without work authorization, asylum seekers are “already destitute” and are forced into “crippling dependence on the charity and good will of others.”). These are hardships that asylum seekers have been facing for decades and that DHS/then-INS continues to ignore. See Federal Register Vol. 59, No. 232, Dec. 5, 1994, at 62290. (More than thirty years ago when the INA proposed the existing 180-day rule, the agency received many comments that criticized [the 180-day deadline rule] for imposing economic hardship on asylum applications noting that “many applicants arrived in the United States with few belongings, no money, and no network of family or friends to provide them assistance…and noting that the rule would impose new burdens on social service organizations and state and local governments because asylum applicants unable to work will turn to these sources for assistance.”) (emphasis added); see also Doe v. Noem, 778 F. Supp. 3d 1151, 1164 (W.D. Wash. 2025) (noting that multiple courts have found that the “loss of or delay in obtaining employment authorization is an irreparable harm” to immigrants) (emphasis added).

At LSNYC, our organization knows well the positive—and often lifesaving—impact that access to an Employment Authorization Document (EAD) can have for our clients who are asylum seekers. In one case, an asylum seeker who was granted asylum in 2024 relied on his EAD to survive and ultimately thrive in the United States; with it, he was able to pursue a degree while simultaneously working at a nonprofit serving medically vulnerable communities. In another case, an asylum-seeking mother of two who fled domestic violence in her home country and served as the sole provider for her family depended on her EAD as the only means to support herself and her children while she fought for—and ultimately secured—her right to remain in the United States.

Additionally, DHS fails to consider the impact of its new discretionary eligibility determinations on existing federal and refugee law. DHS’s proposed rule sets out criteria for the denials of work authorization applications and renewals, including a newly issued criminal bar for entering the United States unlawfully. See Federal Register, Vol. 91, No. 35, February 23, 2026, at 8661. Specifically, the proposed rule would condition work authorization on entering the country through a U.S. port of entry, granting officers the ability to deny EADs if the asylum seeker did not do so. See id. Notwithstanding the fact that the majority of asylum seekers arrive in the United States outside of designated ports of entry, this criminal bar is in direct violation of federal and refugee law. Per 8 U.S.C. §1158 (a)(1), individuals who are physically present in the United States or who “arrive[] in the United States (whether or not at a designated port of arrival…), irrespective of such alien’s status” may apply for asylum in the United States. In other words, entering the United States through a non-designated port of entry is not a bar to seeking or being granted asylum. However, DHS’s rule would make the manner of entry a bar for a benefit that asylum seekers have been granted for decades: work permission. DHS’s proposed criminal bar would directly contradict Section 1158 by punishing asylum seekers entering the United States through a non-designated port of entry, despite the fact that those same individuals may be granted asylum down the road. The rule undermines the underlying eligibility criteria for seeking asylum, manufacturing a condition that is otherwise not a bar to being granted asylum. In turn, DHS would create two classes of asylum seekers: (i) those who arrive in the United States via a designated port of entry and may receive work authorization and (ii) those who arrive in the United States outside a designated port of entry and will not receive work authorization. But this is in direct contrast with Congress’s own mandate—via the Refugee Act of 1980—that there be “equity” in the “treatment of all refugees, however they arrived.” See East Bay Sanctuary Covenant v. Biden, 993 F. 3d 640, 658 (9th Cir. 2021).

Further, DHS’s proposed rule would also violate Article 31 of the Refugee Convention which prohibits countries from imposing “penalties” on refugees “on account of their illegal entry or presence.” See Convention relating to the Status of Refugees, 1951, art. 31, U.N. H.R. 1951, 1951 U.N.T.S. 8. By granting asylum officers the authority to deny asylum-seekers EADs based on the legality of their entry into the United States, DHS is allowing for the penalization of asylum applicants via the withholding of work authorization. Indeed, DHS is punishing asylum seekers, a particularly vulnerable population, for fleeing from persecution in any way they can, by denying them the ability to work. More specifically, the proposed rule would require asylum seekers, who are often the poorest and most disenfranchised individuals in the world, to prioritize entering the United States via a designated port of entry. However, at their time of entry, asylum seekers are usually at their most vulnerable, having spent money and time—often weeks or months—to travel to the United States and escape horrific conditions that have forced them to flee and seek asylum. Indeed, most do not have the resources required to enter via a port of entry. Yet, this proposed rule would make it so the asylum seekers who arrive with the least resources are also the ones unable to seek work authorization later on. This is a direct violation of the non-penalization policies outlined in the Refugee Convention. See generally id.

Tellingly, DHS does not address these tensions in its proposed rule. But this dissonance will inevitably lead to urgent legal challenges, creating additional uncertainty for asylum seekers, refugees, businesses, and communities.

III. DHS Fails to Provide a Reasoned Explanation for Its Proposed Rule

DHS’s claim that this proposed rule is in response to national security concerns is entirely unsupported by the record. See Federal Register, Vol. 91, No. 35, February 23, 2026, at 8628. Specifically, DHS’s assertion that this rule is aimed to reduce incentives for immigrants to “file frivolous, fraudulent, or otherwise meritless asylum applications”; “disincentivize illegal entry into the United States”; “reduce opportunities for fraud”; and “protect USCIS’s ability to have sufficient time and resources to process (c)(8) EAD applications” is not substantiated. See id. at 8628. And while these proposed amendments could theoretically reduce the “existing asylum backlog” by further limiting the individuals who are eligible for asylum—and, of course, precluding asylum seekers from being able to stay in the United States and financially support themselves—they do little, if anything, to address the purported national security concerns. For example, DHS purports that by pausing the processing of (c)(8) EADs, it will decrease the volume of “frivolous, fraudulent” applications because there will no longer be any benefit to making a meritless asylum claim “primarily to access employment authorization.” See id. at 8629. Therefore, fewer asylum applications will be filed.

However, this does not address national security, nor does it address fraud because it does not address the validity of asylum claims. Instead, DHS’s goal is to decrease the volume of all asylum claims—notwithstanding their merit—by barring all asylum seekers from accessing work authorization pending the adjudication of their application. To be sure, barring work permission applications will inevitably lead to the decrease in frivolous asylum applications because it will lead to the decrease of all asylum applications. See Sec. II at 5-6. But the rule does not engage with the underlying cause of DHS’s concern, which is that applicants are abusing a form of immigration relief and making frivolous asylum claims. Instead, the rule simply attacks a symptom of this alleged concern—the large volume of asylum applications—by precluding work authorization. In turn, DHS punishes meritorious asylum seekers, instead of addressing the behavior of “frivolous” asylum seekers. See id. Nor does DHS reckon with the obvious problem that applicants who file frivolous applications or pose a national security risk are the least likely individuals to eschew seeking asylum simply because it will prevent them from being lawfully employed. By contrast, applicants with meritorious claims, who respect United States law and seek lawful employment, are the most likely to be harmed by the proposed rule.

The termination of work permission via a 170+ year “pause” does not in any way help strengthen our national security. Even with the pause of new EAD applications and processing, USCIS will continue to accept and receive new I-589s, meritorious or otherwise. Instead of explaining how its proposed rule will stop “frivolous, fraudulent and meritless filings,” DHS proffers that the rule will “disincentivize aliens from filing for asylum solely to obtain an EAD, and therefore, asylum filings could decline, even though the proposed rule does not directly regulate the Form I-589.” Id. at 8695. But DHS offers no proof of that because it does not exist. Instead, DHS actually admits it has no data in support of this explanation. See id. at 8695. (“DHS has no way of predicting how Form I-589 volumes could change as a result of the proposed rule.”). In fact, the proposed rule could have the opposite effect, and the volume of asylum applications could stay the same, or even increase. That could lead to an even longer proposed pause in the processing of EADs, while the backlog of asylum applications would just continue to increase. While DHS may argue such an outcome is unlikely, what matters is that DHS has not provided any data to justify this change. As such, by its own admission, DHS has failed to provide a reasoned explanation for its proposed rule because as a practical matter the proposed rule operates as an outright termination. This, alone, is a basis for finding this proposed rule to be arbitrary and capricious. See MO v. U.S.C.I.S., 719 F. Supp. 3d 21, 27 (D.D.C. 2024) (finding that an agency is required to “examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.”) (excluding internal citations); New York v. United States Department of Homeland Security, 408 F. Supp. 3d 334, 347 (S.D.N.Y. 2019) (“An agency rule is arbitrary and capricious if the agency…entirely failed to consider an important aspect of the problem [or] offered an explanation for its decision that runs counter to the evidence before the agency…”); Make The Road New York v. Cuccinelli, 419 F. Supp. 3d 647, 661 (S.D.N.Y. 2019) (“[T]he APA requires an agency to engage in reasoned decisionmaking [sic].”) (excluding internal citations).

For the foregoing reasons, LSNYC urges DHS to not move forward with this proposed rule.

Sincerely,

Luis Mancheno
Legal Services NYC

Carolyn M. Norton
Legal Services NYC

Ana Laura Lopez
Gibson, Dunn & Crutcher LLP

Ignacio Martinez Castellanos
Gibson, Dunn & Crutcher LLP

Trevor Gopnik
Gibson, Dunn & Crutcher LLP