Asylum Applicants Hit with 365-Day Work Permit Delay Proposal
Published Date: 2/23/2026
Proposed Rule
Summary
The Department of Homeland Security wants to change the rules for asylum seekers who want to work while waiting for their cases to be decided. They plan to make people wait longer—up to 365 days—before applying for work permission and will pause new work applications if processing times get too long. These changes aim to manage workloads better and could affect many asylum applicants starting in 2026.
Analyzed Economic Effects
12 provisions identified: 1 benefits, 10 costs, 1 mixed.
Pause on New Asylum EAD Applications
If USCIS' average processing time for affirmative asylum applications over a consecutive 90-day period exceeds 180 days, USCIS would pause acceptance of new initial employment authorization (c)(8) applications. Acceptance would restart only when that 90-day average is less than or equal to 180 days.
Waiting Period Increased To 365 Days
If you file an asylum application on or after the rule's effective date, you would only be eligible to apply for a (c)(8) employment authorization document after a 365-calendar-day waiting period measured from the receipt date of a complete asylum application as recorded under 8 CFR 103.2(a)(7). Any initial (c)(8) applications pending as of the rule's effective date remain subject to the prior 180-day clock.
Discretionary Approval of (c)(8) EADs
USCIS would state that approval of (c)(8) EAD applications is discretionary under section 208(d)(2) of the INA, meaning USCIS may grant or deny (c)(8) EADs at its discretion for applications filed on or after the effective date.
Illegal Entry May Bar EAD Unless Timely Asylum Claim
If you entered or attempted to enter the United States without inspection on or after the effective date, you would be ineligible for a (c)(8) EAD unless, without delay but no later than 48 hours after entry, you expressed an intention to apply for asylum or fear of persecution/torture, or you establish good cause for the illegal entry, or you meet the UAC definition.
EAD Adjudication Time Extended To 180 Days
For initial (c)(8) EAD applications filed on or after the effective date, USCIS would have up to 180 days to adjudicate the application instead of the current 30-day regulatory requirement. Initial (c)(8) applications pending as of the effective date would remain subject to the 30-day requirement.
Criminal Bars Exclude Eligibility
You would be ineligible for a (c)(8) EAD if there is reason to believe you may be barred from asylum due to the criminal bars listed in sections 208(b)(2)(A)(ii)-(iii) of the INA. DHS proposes to exclude such individuals from (c)(8) eligibility.
Denial During Waiting Period Bars EAD
If your asylum application is denied by an asylum officer or an Immigration Judge within the 365-calendar-day waiting period (or before adjudication of your initial (c)(8) EAD), you would be excluded from initial (c)(8) EAD eligibility.
One-Year Filing Deadline Affects EAD Eligibility
If you file an asylum application on or after the effective date and you filed that asylum application more than 1 year after your arrival in the United States, you would be ineligible for a (c)(8) EAD unless an asylum officer or Immigration Judge finds an exception to the one-year filing deadline or you are a USCIS initial-jurisdiction unaccompanied alien child (UAC).
Termination Rules for (c)(8) EADs After Denial
Under the proposal, a (c)(8) EAD would terminate immediately after denial of an asylum application by an asylum officer (unless referred to an Immigration Judge), 30 days after an IJ denial unless timely appealed to the Board of Immigration Appeals, or immediately after denial or dismissal by the Board of Immigration Appeals.
Biometrics Required for All (c)(8) Applicants
You must submit biometrics for all initial and renewal (c)(8) EAD applications; if you fail to appear for biometrics, your application would be denied under 8 CFR 103.2(b)(13)(ii).
Existing EAD Holders Kept Until Expiration
If you already have employment authorization before the final rule's effective date, you may remain employment-authorized until the expiration date on your current EAD unless your card is otherwise terminated or revoked under the regulations that were in effect when your EAD was issued.
Priority Adjudication for Derogatory Information
USCIS would be authorized to prioritize adjudication of asylum applications if derogatory information is found during the (c)(8) EAD adjudication process, allowing faster review of cases flagged during EAD processing.
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Key Dates
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