New Trump Administration Rule Will Limit Asylum Seekers' Ability To Obtain Work Permits

Jun 28, 2020

A new rule that will further curtail the ability of asylum seekers in the United States to work becomes official Friday.

If it is not held up by legal challenges, the policy will go into effect on August 25, 2020. It makes most asylum-seekers who don’t cross into the United States at an official port-of-entry ineligible for a work permit, and it requires others to wait a full year from the time their asylum case was officially filed before they can legally work.

Immigrant advocates say this will be dire for asylum seekers — many of whom, under the new rules, won't be able to work for years after they arrive in the United States. The rule itself acknowledges this, but says the Department of Homeland Security doesn't believe it to be overly burdensome or cruel. It does, however, suggest that "Asylum seekers who are concerned about homelessness during the pendency of their employment authorization waiting period should become familiar with the homelessness resources provided by the state where they intend to reside."

Julia Brown is an Advocacy and Outreach Attorney with the Immigrant Legal Advocacy Project, based in Portland. Maine Public’s Nora Flaherty asked her what this will mean for people who have entered the US both at ports-of-entry and elsewhere:

Brown: We're seeing a lot of individuals and families coming outside of ports-of-entry. So all of those people would be ineligible to work under this new rule. That would really impact people who are fleeing violence.

There's also a really long wait for asylum. So if you're not able to work during that time, you are not going to be able to put food on the table, you're not going to be able to have shelter, to have clothing, you're not going to become a productive and healthy member of the community. It's a very real consequence that will be felt by thousands of people.

Flaherty: It's my understanding that it sometimes can take a period of months for people's asylum claims to work their way to the system, to the point where that one year clock would begin. Is that correct?

Yes, that's correct. For example, a lot of the folks we saw last summer, who were housed at the expo temporarily, took a long, long time to get their names in the system, which is what we call it, which just means that the court has a record of their case. You cannot apply for asylum until you are in court. So people could not apply for asylum, to even start that clock ticking, to get their work permit until almost a year after arriving to the country. We probably are looking at a period of almost two years, seeing how things have been going so far with immigration court, with getting them in the system. So almost a year until you can apply for asylum. And then with this new rule, it would be a full year before you could get your work permit.

What does Maine's population of asylum seekers look like? And what kind of impact will this have on them?

One really important note is that the ban on those entering at the border outside of a port-of-entry, according to this rule, only applies to those who enter the United States after the rule goes into effect. So currently that would be August 25, 2020. For the purposes of this rule, it does not matter how anyone who is currently in Maine and seeking asylum entered the United States, which is a good thing. However, anyone who has just applied for asylum still has that wait to get that work permit. This rule would impact them if they aren't able to get that work permit by August 25. It will then be a full year wait.

Has there been action from Maine's Congressional Delegation or at the federal level about this rule?

Representative Pingree did sign onto a letter commenting against this rule when it was open for comment earlier this year. Interestingly enough, both Sen. Collins and Rep. Pingree have previously introduced legislation that would shorten that wait period for a work permit to 30 days, after applying for asylum. Because both Sen. Collins and Rep. Pingree recognize how important it is that asylum seekers are able to work, both for Maine's economy but also for their own well being.

As you see it, what is the reason for making a rule like this one?

They talk a lot about fraud and other issues, but they have never backed up their claims that this would prevent fraud. In fact, they offered no evidence that this rule would even decrease asylum applications, which is why they are saying that they've put this rule into place, to have fewer people seeking asylum, and then have a faster asylum process. That doesn't make any sense with how their rule is laid out. In fact, they've admitted that they don't even collect data on how many asylum applications are frivolous or fraudulent, and they only collect data on denials versus grants.

Are you anticipating that this will be the subject of legal action? And if so, what will that accomplish?

Yes, I absolutely think this will be challenged by national immigration groups because this regulation goes against clear national and international laws. For example, Congress has made it clear that it is legal to seek asylum, no matter how you enter the country. This regulation treats people differently if they enter at the border, not through a port-of-entry, versus coming through a port-of-entry. That goes against what Congress has put into law. It also violates our legal obligations under the Refugee Convention, which is international law. So we have seen a lot of success in the courts, a lot of policies that the administration has put forth have been stopped either temporarily or permanently by the courts. I hope that a judge would issue a preliminary injunction once a lawsuit is brought. That would temporarily stop this rule from going into effect until the case has been heard. And I really think there's a lot of good law behind the fact that this regulation is arbitrary and capricious.

In an emailed statement, a U.S. Customs and Immigration Service spokesperson says the rule is intended to discourage illegal entry into the United States and to cut down on meritless or fraudulent asylum applications. They further state: "Employment authorization for aliens seeking asylum is not a right. It is a discretionary benefit that we must implement carefully to ensure it benefits those it is meant to assist, namely bona-fide asylum seekers."

Originally posted 5:42 p.m. June 26, 2020