Saturday, September 24, 2022

DHS Publishes Final Rule to Restore Asylum Regulations Consistent with Asylumworks Vacatur

The Department of Homeland Security (DHS) today announced publication of a final rule consistent with the vacatur of the U.S. District Court for the District of Columbia in  Asylumworks et al. v. Mayorkas et al. This final rule is effective starting Feb. 7, 2022. 

In June 2020, DHS issued two final rules, titled Removal of 30-Day Processing Provision for Asylum Applicant-Related Form I-765 Employment Authorization Applications (Timeline Repeal rule) and Asylum Application, Interview, and Employment Authorization for Applicants (Broader Asylum EAD rule).

On Feb. 7, 2022, the federal district court vacated the Timeline Repeal rule and Broader Asylum EAD rule. Effective Feb. 8, USCIS stopped applying these rules to asylum applicants. We instead are applying the provisions in place before the rules took effect in August 2020. See 8 CFR §§ 208 and 274a. This applies to adjudication of Form I-589, Application for Asylum and Withholding of Removal, and Form I-765, Application for Employment Authorization, pending with USCIS as of Feb. 8, 2022, or received on or after that date.

Consistent with the Asylumworks vacatur, this final rule removes certain regulatory text governing asylum applications, interviews, and eligibility for employment authorization based on a pending asylum application. We have restored the relevant regulatory text to appear as it did before the effective dates of the vacated rules.

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