USCIS announced a new change to the asylum process that could result in more cases being sent to immigration court. The goal is to reduce the backlog of cases, but lawyers warn people could get stuck in the court process.
What changed
On July 28, 2026, DHS issued an interim final rule allowing USCIS to refer certain affirmative asylum applications directly to immigration judges without an interview, targeting up to 444,724 of the 1.43 million pending cases. The immigration court system is usually reserved for people who are already in the deportation process, but the new rule will allow USCIS officers to send cases to immigration court without interviewing immigrants first.
Asylum officers can refer nonmeritorious or barred applications to an immigration judge based on a review of the written record and background checks alone. These include failure to meet the statutory one-year filing deadline without an established exception, mandatory criminal, persecution or national security bars, and negative discretionary factors such as connections to serious crime or watchlists.
The rule took effect immediately upon publication in the Federal Register on July 28, 2026. DHS is accepting public comments through September 28, and will issue a final rule after reviewing them.
Why it matters
This change fundamentally alters how you must prepare an affirmative asylum claim. When USCIS doesn’t grant an affirmative application and refers it to an Immigration Judge, the applicant gets a fresh, second review of their case. That second look remains available under the new rule. USCIS can now skip the interview and send certain applications straight to court based on the written record alone.
You no longer have the opportunity to clarify, amplify, or correct your written Form I-589 in an oral interview with a USCIS asylum officer before the case reaches an immigration judge. Every detail, exception claim, and factual assertion in the application itself now carries the full weight it would before a judge.
DHS officials estimate that more than 444,000 pending cases — roughly 31% of the current affirmative backlog — involve applications filed more than one year after entry into the country. If your client’s filing is untimely, the application is at immediate risk of referral based on the written record alone, absent a convincing exception claim filed upfront with the I-589.
Way forward
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Treat Form I-589 as interview-ready: Include all facts, documentary support, and legal arguments within the application itself. Do not assume an oral interview will permit you to add facts, context, or credibility testimony.
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Address the one-year deadline head-on: If your client filed after one year of entry, assert any available exception (asylum officer’s failure to provide list of DHS locations; extraordinary circumstance; changed country conditions; etc.) in the Form I-589 narrative and supporting declaration. Do not reserve this for an interview.
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Prepare for direct-to-court trajectory: Advise your client that the application may be referred to immigration court without a USCIS interview. Ensure they understand what to expect in immigration court (new judge, merits hearing, rules of evidence, burden of proof) and have access to representation before that hearing.
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Monitor the 60-day comment period: DHS is accepting public comments through September 28, 2026. Consider whether industry feedback will result in a more limited final rule. Do not assume the interim final rule’s current scope is permanent.
Disclaimer
This article is provided for informational purposes only and does not constitute legal advice. We are a software company, not a law firm. Immigration law is complex and changes frequently. You should consult a licensed immigration attorney about your specific situation and verify all information against the primary source documents linked above and the full text of the rule once published in the Federal Register. Policy and agency practice can change without notice.