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The right of asylum seekers in the United States to obtain work authorization while their cases are pending is one of the oldest pillars of American immigration policy. This guarantee, which has existed since the 1990s and is anchored in INA §208(d)(2) and 8 CFR §208.7, is now at the center of a regulatory proposal from the second Trump administration that could reshape how millions of people in the asylum process sustain themselves within the country. Officials from the Department of Homeland Security indicated to the American press that USCIS technicians drafted a rule capable of effectively suspending the issuance of new Employment Authorization Documents for this population until the backlog falls to an average of 180 days per case.
The potential impact is enormous. USCIS oversees approximately 1.5 million affirmative asylum applications, and the immigration courts of the Executive Office for Immigration Review process roughly 2 million additional defensive cases. Any change in EAD eligibility reverberates through hospitals, restaurants, agriculture, construction, and logistics — sectors where asylum seekers make up a significant share of the legally authorized workforce.
How the EAD for Asylum Works Today
The current rule follows a precise timeline. The applicant files the Form I-589, Application for Asylum and for Withholding of Removal. From the receipt of that petition, the so-called asylum clock begins to run. After 150 days, the applicant becomes eligible to file the Form I-765, Application for Employment Authorization, under eligibility category (c)(8). USCIS may then grant the EAD after 180 days have elapsed from the initial asylum application, provided no delays are attributable to the applicant.
This framework was designed to balance two objectives. On one hand, to prevent the system from being used merely as a shortcut to work authorization. On the other, to acknowledge that legitimate cases take time to resolve and that people fleeing persecution cannot go without income for years. The EAD for category (c)(8), once issued, typically carries a two-year validity and is renewable while the asylum petition remains pending.
What the Proposal Under Review Seeks to Change
According to DHS officials’ accounts to the press, the regulation under study has three central pillars. The first is tying the issuance of new EADs to USCIS performance: authorization would only resume once the average asylum case decision time drops to 180 days. The second is extending the waiting period from six months to one year after filing the I-589, even if the backlog is reduced. The third is closing eligibility pathways that currently allow certain administrative exceptions.
In practice, the first pillar amounts to an indefinite suspension. Federal audits published in the last cycle indicated that more than 77% of USCIS petitions had been pending for over 180 days, and roughly 40% exceeded two years without a decision. Reaching a 180-day average would require massive hiring of asylum officers, new processing units, and an operational overhaul that is unlikely to happen in the short term.
Who Is Most Affected
The most vulnerable population is those who filed affirmative applications within the past two years and have not yet obtained an EAD. Without work authorization, three paths remain: relying on family and community networks, turning to the informal economy — an option that violates the law and creates additional deportation risk — or abandoning the asylum petition altogether.
Applicants in defensive proceedings before immigration judges would also be reached by the proposal, even though jurisdiction over their cases belongs to the Department of Justice. The government’s rationale is to standardize the rule to prevent migrants from choosing one pathway solely based on EAD timing.
Employers and the Supply Chain
Hospitals, long-term care networks, agribusiness, and construction depend on workers with pending asylum status to fill positions that find no candidates in the domestic market. Conchita Cruz, co-director of the Asylum Seeker Advocacy Project, summarized the sectoral argument by stating that applicants fill essential roles — from physicians to hospital housekeeping teams.
For employers, losing access to this legal workforce means upward pressure on nominal wages in already strained sectors, relying on temporary visa programs with limited quotas such as the H-2A and H-2B, or operating with open positions. The National Immigration Forum and chambers of commerce in states like Texas and Florida have already been signaling concern about such scenarios.
Legal Basis and Avenues for Challenge
INA §208(d)(2) provides that an asylum applicant cannot receive work authorization before 180 days after filing, but delegates to the Attorney General the authority to regulate the conditions of issuance. This delegation is the legal hook the Trump administration intends to use to impose additional requirements.
The 2020 rule, issued during Trump’s first term, attempted a similar approach — extending the waiting period and tightening requirements. Litigants obtained preliminary injunctions in federal districts, and some of the changes were later reversed by the Biden administration. A new version is expected to face, at minimum, challenges under the Administrative Procedure Act, alleging arbitrariness in setting the 180-day criterion and a failure to adequately analyze the impact.
Connection to the Broader Immigration Agenda
The EAD proposal does not stand alone. It is part of a broader package from the second Trump term that includes restrictions on humanitarian parole, expansion of expedited removal, the end of temporary protection programs, and increased detention capacity. For those tracking global mobility, the strategic signal is clear: make the stay of those who entered through the asylum system as costly as possible, hoping to reduce future flows through a demonstration effect.
What Applicants Can Do Right Now
While the rule has not yet been published in the Federal Register, the current system remains in effect. Those with pending asylum applications who have not yet filed Form I-765 should carefully evaluate the right moment within the asylum clock window. Those who already hold a valid EAD should plan their renewal at least six months before expiration, given that processing times may extend. Documenting proof of pending time, communications with USCIS, and any address changes is essential — administrative lapses become grounds for denials.
What to Expect in the Coming Months
A rule of this magnitude traditionally goes through publication as a notice of proposed rulemaking, a 30-to-60-day public comment period, and a final version. Litigation is certain. The realistic timeline for a final version to take effect, accounting for challenges in federal courts, typically exceeds one year. In the interim, official communications from USCIS, DHS, and the Federal Register are the primary sources for tracking developments and deadlines.
The point that deserves heightened attention from those in the process is the difference between announced policy and current rule. A press announcement does not automatically alter rights. Each procedural step of the rulemaking process opens space for applicants, employers, and organizations to submit data on real-world impact — and that window is often decisive in shaping the final text.
Victoria Harper
Editor-in-Chief
Leading journalism and editorial content at Visto n’ Visa, Victoria helps make immigration topics clear, trustworthy, and easy to understand. Her focus is on delivering useful, human, and relevant content for people exploring new paths abroad.
