Week 9: New requirements for work authorization and fees for asylum seekers, others

Immigration news, in context.

This is the ninth edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.

The Big Picture

New regulations seek to limit asylum seekers’ ability to work in the United States, and make immigration largely more expensive

The News: In two separate proposed rules published in the Federal Register this week, the Trump administration seeks to greatly limit how and when asylum seekers can receive legal authorization to work in the United States as their applications are in progress, to add a fee for affirmative asylum applications, and to generally increase fees on most immigration benefits applications.

What’s happening?

To understand these developments, it’s important to understand two particularities of the U.S. immigration system: 

First, work authorization is connected to but not necessarily determined by an individual’s status or situation at a given time. Some statuses, like legal permanent resident, receive automatic authorization (though may still require the government to issue a document). Others may receive work authorization, including limited work authorization, or they may not receive work authorization at all depending on individual circumstances. Being granted asylum status confers employment authorization, but being an asylum applicant merely permits it. 

As the asylum statue puts it “[a]n applicant for asylum is not entitled to employment authorization, but such authorization may be provided under regulation by the Attorney General.” (8 U.S.C. 1158(d)(2)). The only explicit limitation is that asylum applicants cannot receive work authorization less than 180 days after applying for asylum. The rest is at the discretion of Homeland Security and its U.S. Immigration and Citizenship Services (USCIS) sub-agency. 

Second, USCIS is one very few federal government agencies that isn’t primarily funded through government appropriations. In fact, roughly 95 percent of its budget does not come from taxpayers at all, but from the fees it collects for immigration services and applications, including everything from the aforementioned EAD cards to travel documents, visa applications, petitions for family members and foreign workers, and naturalizations. The collected fees are put into a general fund called the Immigration Examinations Fee Account (IEFA). The Chief Financial Officer of USCIS, in accordance with 31 U.S.C. 902(a)(8), examines its fee structure every two years.

The proposed regulation dealing with work authorizations for asylum seekers is pretty complex, and suggests changes to a variety of federal regulations related to these authorizations (in 8 C.F.R. 208 and 8 C.F.R. 274a.12). These are the key takeaways:

  •  Asylum seekers who cross the border illegally — as opposed to presenting themselves at a port of entry — would be ineligible for employment authorization at all (except in limited situations, such as a medical emergency). 

  • The current 150-day wait time before an asylum-seeker can even apply for work authorization would be extended to 365 days, and preliminary approval by an asylum officer that previously let some asylum seekers dodge this mandatory wait time while they awaited background and security checks would be eliminated. Delays deemed to be caused by applicants could also cause rejections. 

  • Anyone convicted of a felony, certain public safety offenses, or a “serious non-political crime outside the United States,” would now be ineligible. 

  • Among those who are eligible, the validity periods of the EADs would not exceed two years, and it would be easier for the government to terminate them at different stages in the process, such as after an initial denial by an asylum officer. 

  • All applicants would have to undergo biometrics collection for their EAD in addition to asylum-related biometric and pay the $85 biometrics fee.

The administration explicitly claims that all of this is necessary to combat “abuse” of the asylum system by migrants who knowingly file meritless claims. “[T]he benefits potentially realized by the proposed rule are qualitative... reducing incentives for aliens to file frivolous, fraudulent, or otherwise non-meritorious asylum applications intended primarily to obtain employment authorization, or other forms of non-asylum based relief, and remain for years in the United States due to the backlog of asylum case and disincentivizing illegal entry into the United States,” the proposal reads.

This argument is a bit asinine, as the administration is proposing to help solve issues it had a big hand in creating. While the court backlog has no doubt grown partly as a result of increased volumes of asylum seekers, it has also ballooned as a result of internal policy maneuvers, like prohibiting immigration judges from administratively closing cases. Further, the administration’s policy of metering asylum seekers at the border — that is, only allowing in a few at a time at each port of entry, as potentially hundreds more wait in squalid and dangerous conditions — has clearly incentivized unauthorized border crossings

Working without valid work authorization is not only discouraged; it is illegal, and could affect an asylum seeker’s ability to stay in the country. Yet under this proposal, they would have to live in the country  for at least a year without working and would be ineligible for any government assistance. On top of that, they’d have to pay an $85 fee for the biometric services necessary to eventually receive work authorization.

The other proposed rule from this week deals with the collection of fees for USCIS. The agency concludes that in order to generate the revenue needed to cover operational costs, it has to increase its fees by a cumulative 21 percent, the same as the increase after the last fee reassessment in December 2016.

The previous increase was mostly derived from slight increases in naturalization costs and a new processing fee on the EB-5 investor visa, which generally requires foreign investors to put at least $500,000 into an American business venture. This new fee schedule would massively increase the cost of submitting naturalization application forms (from $640 to $1,170); increase fees for DACA renewals (by about $270 collectively); create new fees for hiring temporary nonimmigrant workers; restrict the availability of fee waivers, which allow low-income individuals to avoid certain fees, to only those mandated by law; and for the first time, impose a fee on affirmative asylum applications, of $50. (Affirmative asylum applications are submitted by an individual who is not already in deportation proceedings. Almost all asylum applications made at the border are defensive, and would not be subject to the fee).

USCIS is directed to recover its costs, but there’s generally no specific limitations on how much it can charge for services, as long as these charges are commensurate with its funding needs. For example, the asylum statute reads that the Homeland Security Secretary “may impose fees for the consideration of an application for asylum, for employment authorization under this section, and for adjustment of status under section 1159(b) of this title. Such fees shall not exceed the Attorney General’s costs in adjudicating the applications.”

How we got here

The Immigration Reform and Control Act of 1986 implemented new policies intended to cut down on the number of unauthorized workers in the U.S., including the establishment of the I-9 form, also known as the Employment Eligibility Verification document. The I-9 is supposed to help employers identify two things: a worker’s identity and their ability to legally work in the U.S. The law also made it illegal for workers to knowingly hire unauthorized immigrants.

USCIS is supposed to process asylum seekers’ work authorization applications within 30 days — but it has regularly failed to do so, leaving thousands of people in legal limbo as they await a final decision on their asylum cases. In 2018, a federal judge ruled that USCIS must adhere to the 30-day deadline. That year, the Trump administration also added a new question to the employment authorization application: “[H]ave you EVER been arrested for and/or convicted of any crime?” 

The question is ostensibly intended to weed out people who have been convicted of aggravated felonies and are therefore ineligible for work authorization, but according to the American Immigration Lawyers Association, it’s worded so vaguely that it has created problems for asylum seekers who have been arrested or convicted of any crime anywhere, including in countries other than the U.S.

As for USCIS fees, the Homeland Security Act of 2002 — which dissolved Immigration and Naturalization Services, the immigration enforcement agency that existed prior to 2003 and replaced it with DHS — continued the tradition of funding certain immigration and naturalization services through fees. The law amended Section 286(m) of the Immigration and Nationality Act, which has to do with the aforementioned Immigration Examinations Fee Account.

Congress created the fee account in 1988 through an appropriations bill for the Department of Justice. The goal was for services like naturalization and visa applications to be self-funded by applicants, but there was always an exception for humanitarian immigrants, such as asylum seekers. Essentially, the structure has traditionally made it so fees for applications for naturalization, permanent residency, and other forms of status subsidize the cost of processing asylum seekers.

What’s next?

Neither of these proposals is a final rule yet. They’re both in public comment periods (until December 16 for the fee structure one and January 13 of next year for the work authorization one), and the federal government is obligated to read and address comments in its finalized rules. Presuming that each rule goes into effect in a substantially similar form to these proposals, the work authorization restrictions would be yet another obstacle in the path of anyone attempting to seek asylum in the United States. As we explained last week, the administration has developed an impressive array of policies with the single-minded goal of almost entirely shutting down asylum altogether.

It’s worth noting that the new employment authorization requirements would snag asylum-seekers who already had to overcome significant barriers. The availability of an EAD is only really relevant if you haven’t already been sent to Mexico under MPP, sent to Central America under one of the third country agreements, haven’t been barred from seeking asylum under the asylum ban, or put into one of the lightning ten-day asylum adjudication programs being piloted along the border. 

If an asylum seeker managed to avoid all of that, they would still find themselves unable to work for a minimum of one year after submitting an application, or possibly banned from working at all for the potentially several years it will take for their case to be adjudicated if they cross the border illegally. Of course, it’s essentially impossible to survive like this, meaning most people would probably work illegally anyway, putting themselves at risk of denial and deportation. 

Two provisions of the rule would be retroactive to asylum seekers who already had submitted employment authorization requests before the final rule’s effective date: the bar on people with certain criminal convictions and arrests, and the need to attend an addition biometrics appointment. (Though no extra fee would be assessed for people with pending applications.) DHS estimates about 300,000 people could be affected each year.

As far as the fee increases, the most significant consequences would likely be that immigrants, especially low-income applicants, would be discouraged from applying for citizenship. Some research has shown that the costs associated with naturalization, both in terms of fees and legal help, discourage many otherwise eligible legal permanent residents from taking that step. The increase in costs, paired with the decrease in the availability of fee waivers, will likely keep many from becoming citizens. (It’s worth noting that unlike naturalized citizens, lawful permanent residents are still subject to deportation.) Obviously, adding a cost to asylum applications will likely dissuade these as well. 

Under the Radar

Stephen Miller’s trove of racist emails revealed

The Southern Poverty Law Center unearthed more than 900 emails sent by White House adviser Stephen Miller in the months leading up to the 2016 presidential election. The emails, which were sent to Breitbart editors from March 2015 to June 2016, reveal a practically singleminded focus on immigration policy—as well as Miller’s affinity for white supremacist websites like American Renaissance and VDARE.

Miller’s emails focused on everything from the supposed Islamization of Europe to the removal of Confederate flags and monuments in the wake of the Charleston church shooting, but we’re going to focus on his fixation with immigration laws from the 1920s. Miller’s emails made several references to the Immigration Act of 1924 — and to President Calvin Coolidge, who signed the bill into law and who was against “race-mixing” — which implemented a quota system that all but eliminated immigration from Southern and Eastern Europe. The quota system was eventually repealed with the passage of the Immigration and Nationality Act of 1965, a law Miller implies ended the “heritage established by Calvin Coolidge.”

So why does this matter? For one, Miller is widely considered the mastermind behind many of the Trump administration’s immigration policies — the fact that he finds himsef in agreement with what is clearly white supremacist literature suggests animus towards people of color. There’s also the fact that, according to political reporter Meredith Shiner, Miller’s emails were an “unspoken secret” among reporters who covered politics around 2013, when Miller worked for then-Senator Jeff Sessions.

Lawyers may soon be allowed in “Remain in Mexico” non-refoulement interviews

A federal judge in California issued a temporary restraining order ruling that could limit the Trump administration’s Remain in Mexico policy, formally called Migrant Protection Protocols. The judge’s ruling, which says that a family of Guatemalan asylum-seekers is entitled to have a lawyer present during an interview in which an immigration officer determines whether they face persecution in Mexico. 

All migrants in the MPP are technically entitled to these interviews, but they have to ask for them. And according to a lawsuit filed earlier this month by the ACLU of San Diego and Imperial Counties, they are detained in Customs and Border Patrol stations before and after their interviews, and aren’t allowed to see their lawyers ahead of time. These interviews are crucial for migrants on the MPP docket, who are regularly subject to kidnapping, extortion, and threats by local gangs and cartels. The lack of legal representation in these interviews a major hurdle for migrants who are hoping to be taken off the MPP docket and allowed to fight their asylum cases from within the U.S.

As Max Rivlin-Nadler reports, the temporary restraining order only applies to the Guatemalan family being represented by the ACLU in this particular case, but there’s a hearing in December that will determine whether it will apply to all migrants on the MPP docket. 

That said, it’s unclear what the effect of an expanded restraining order will be, since the overwhelming majority of migrants on the MPP docket don’t have lawyers at all.

Next Destination

Administration appeals Flores ruling

In September, Judge Dolly Gee of the U.S. District Court for the Central District of California blocked the Trump administration’s attempt to implement new regulations concerning the treatment of migrant children in U.S. government custody. The case concerned an attempt to modify the government’s compliance with the Flores agreement, a court settlement that mandates adherence to certain rules with regards to minor, including the stipulation that they not be kept in restrictive immigration custody for longer than 20 days. The administration had attempted to craft new rules that would it allow it to, among other things, self-certify its own federal facilities as safe for children, paving the way for indefinite detention of families in the interior of the country.

The federal government has now appealed Judge Gee’s decision to the Ninth Circuit Court of Appeals. Flores has been in litigation for an excess of twenty years, and its legal defenders have been adept at parrying attempts to unravel its protections. It’s unlikely that the administration will be able to successfully make the case that its attempts to keep minors in facilities that its own inspectors have often deemed unsafe and unsanitary are in compliance with the terms of the agreement.

Wolf and Cuccinelli are in

After more than a week of confusion as to who would be the new Homeland Security secretary — and when that person would start — the Senate confirmed Chad Wolf as the undersecretary for the Office of Strategy, Policy, and Policy this week. That confirmation led to Wolf’s immediate promotion to acting DHS secretary, since the department has been without a leader since former acting secretary Kevin McAleenan left the post

Several reports, including a Washington Post profile of McAleenan published less than two weeks before he resigned, suggested that the former acting secretary struggled to stay in the president’s good graces. Trump reportedly didn’t consider McAleenan tough enough on immigration, even though McAleenan helped implement a number of policies that have come to define the administration, including the 2018 family separation policy and the Migrant Protection Protocols.

McAleenan isn’t the first DHS head to be forced out for not being tough enough on immigrants; former DHS secretary Kirstjen Nielsen resigned in April after months of reports that Trump didn’t think she was fit for the job. It’s interesting, then, that Wolf — a Nielsen ally who served as her chief of staff during the 2018 “zero-tolerance” policy — is now helming the department.

Meanwhile Ken Cuccinelli, who was widely believed to be Trump’s top choice for the pick, is now Wolf’s deputy. Cuccinelli’s promotion will likely assuage any concerns that Wolf won’t be enough of an immigration hardliner. As the New York Times reported in September, the former USCIS director had essentially become Trump’s key surrogate in recent months, making the rounds on cable news to tout the president’s immigration policies and denounce his critics. In his new role, Cuccinelli will have more formal control over department policy, and could become the new acting DHS Secretary if Wolf is ever shown the door.