President Joe Biden issued an executive order to temporarily suspend the processing of most asylum claims at the southern U.S. border when the seven-day average of unauthorized crossings exceeds 2,500. The order came into effect immediately and will fundamentally reshape how immigration practitioners advise asylum applicants and how USCIS adjudicators handle credible fear cases.
What changed
The executive order temporarily suspends the processing of most asylum claims at the southern U.S. border when the seven-day average of unauthorized crossings exceeds 2,500. The new rule raises the threshold to grant an asylum hearing based on a credible fear claim, that is when a migrant manifests fear of prosecution or torture in their native country or country of removal.
The restrictions will remain in place until 14 days after the seven-day average of illegal crossings drops below 1,500. The measures will go back into effect once the number reaches 2,500.
Beyond restrictions, this new rule allows permanent residents, unaccompanied children, victims of a severe form of trafficking, and other noncitizens with a valid visa or other lawful permission to enter the United States. The rule issues in Tuesday is the same law former President Donald Trump used in 2017 to ban immigration from several majority-Muslim countries, and in 2018 to suspend the right to petition asylum for migrants crossing the border illegally.
Why it matters
For immigration practitioners, this order creates immediate, high-stakes changes to your practice:
Asylum eligibility shifts. Practitioners can no longer advise clients that they have an automatic right to seek asylum upon arrival between ports of entry. Instead, eligibility now depends on whether a credible fear threshold is met—and that threshold has been raised. Clients who previously might have qualified no longer will.
Credible fear interviews are now gatekeeping. The interview itself becomes the critical juncture. Raising the standard means more applicants will be found not to have credible fear and will be ordered removed immediately, sometimes within days. This compresses the timeline for client preparation and legal representation.
Timing and processing strategy changes. The emergency suspension lifts 14 days after a seven-day average drops below 1,500 crossings, then re-triggers if the number reaches 2,500 again. Practitioners must track daily apprehension data to advise clients whether the order is in or out of effect at any given moment.
Legal challenges are certain. Several immigrant rights organizations criticised the Biden administration for enacting these measures. On Tuesday, the American Civil Liberties Union said it intends to challenge this order in court. The outcome of those challenges will determine whether this order remains enforceable or is enjoined.
Way forward
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Monitor the apprehension threshold daily. Track whether the seven-day average is above or below 2,500, since the order’s effect depends on this data. Organizations like the ACLU will likely publish tracking updates; maintain a reliable data source.
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Prepare clients for heightened credible fear scrutiny. If you are representing a client after unlawful entry between ports, conduct a thorough pre-interview assessment of whether the client can articulate a legally cognizable fear of persecution or torture. The bar is now substantially higher.
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Document the legal challenge status. As the ACLU intends to challenge this order in court, check federal court dockets (especially the D.C. Circuit and Ninth Circuit) for injunction motions. An injunction could suspend the order nationwide or regionally while litigation proceeds.
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Advise on alternative pathways. Unaccompanied children, victims of a severe form of trafficking, and other noncitizens with a valid visa or other lawful permission are not subject to the suspension. Explore whether your client falls into an exempted category or can utilize lawful entry programs (such as CBP One or humanitarian parole).
Disclaimer
This article is for informational purposes only and is not legal advice. Fola Editorial is a software company, not a law firm. You should consult with a licensed immigration attorney regarding your specific situation and how this order affects your case. This policy is subject to change and may be enjoined or modified by court order without notice. Always verify the current status and applicability of this order against the primary source linked above and current judicial filings before advising clients.