Court Trashes Trump-Era Rules That Prevented Asylum Seekers From Working Legally

But bureaucratic backlogs mean it's still taking far too long for them to get to work.


Two rules issued by the Trump administration's Department of Homeland Security (DHS) that restricted work permits for asylum seekers are invalid, ruled a federal judge in the U.S. District Court for the District of Columbia last week.

The rules, both issued in June 2020, affected the ability of asylum seekers to secure employment authorization documents. The first did away with an earlier regulation that required United States Citizenship and Immigration Services (USCIS) to process work authorization applications within 30 days after receipt. Notably, the DHS summary of this rule's pros and cons included a lengthy section on the quantitative costs of scrapping the 30-day processing timeline (including lost productivity costs to U.S. companies and lost wages for asylum seekers), but said that quantitative benefits were "not estimated."

The second rule "modified regulations governing asylum applicants' eligibility for employment authorization," according to last week's ruling. It added numerous restrictions to the work authorization process for asylum seekers, including a provision that forced asylum seekers to wait one year before requesting work authorization (up from the previous period of 150 days). The DHS noted that the 365-day waiting period was more fitting due to "an average of the current processing times for asylum applications," in which the wait time for an initial decision may "range anywhere from 6 months to over 2 years." In other words, because it took so long for asylum applicants to receive decisions on their applications, officials opted to make them wait longer for work authorization.

Judge Beryl A. Howell did not comment on the merits of the rules themselves, but the way in which they were enacted. At issue was the ascension of former DHS Acting Secretary Chad Wolf. President Donald Trump formally nominated Wolf for the position, but the appointment never received a full vote in the Senate. In his capacity as acting secretary, Wolf introduced these and many other rules—some of which have since been deemed illegitimate and overturned. "Five other district courts across the country and another Judge on this Court have already concluded that Wolf's appointment as Acting Secretary was invalid," notes last week's decision.

By nature, asylum seekers are some of the most vulnerable migrants coming to the U.S. They must prove they have faced or fear they will face persecution on the basis of race, religion, nationality, membership in a specific social group, or political opinion. Work is a key way they assimilate into their new communities and begin to support themselves financially.

And now more than ever, it's important to get as many people working as possible. There were 10.9 million job openings in the U.S. as of the last Bureau of Labor Statistics report in December. The economy is still struggling on a number of fronts. Meanwhile, over 46,000 people were granted asylum in fiscal year 2019, compared to the 307,000 who applied for it. There are plenty of people interested in coming to the U.S. Only a small percentage of them have been able to secure the right to stay, and unfortunately, Trump-era rules have made it difficult for them to work.

Application backlogs still pose a major challenge to migrants seeking employment authorizations, however. As of November, USCIS estimated that work authorization processing wait times were as high as 21.5 months at its service centers. Several immigration law firms filed a suit against the government over the extreme delays, which keep immigrants out of work for long periods of time. This has been "great cause for concern for individuals who have a job offer lined up or who need to work to maintain their households," notes Jacob Sapochnick of Visa Lawyer Blog.

This is obviously a major obstacle and one that affects more than just asylum seekers. Even so, last week's ruling could begin to provide some necessary relief to many asylum seekers—and to the U.S. economy as a whole.