The Trump administration has chipped away at immigrants’ ability to claim asylum over the past year, undercutting one of the few remaining ways for people fleeing persecution to stay in the U.S. This week, USCIS issued a new rule that fundamentally changes how asylum applications are adjudicated—moving thousands of cases out of the asylum office and into immigration courts where denial rates are substantially higher.
What changed
A new USCIS rule lets asylum officers refer an asylum application to the immigration court system within the Justice Department, where attorneys say it is now likely to get rejected. In the latest change, asylum officers could send hundreds of thousands more asylum applications to immigration courts.
The rule takes effect immediately, even as the agency collects public comments. It is meant to reduce the one-million case backlog at USCIS by about 30%.
USCIS officials have defended the changes, saying the Biden administration made it too easy to get asylum. USCIS Director Joseph Edlow said in a statement that “For far too long the asylum system has been exploited for purposes of delay and work authorization, not legitimate claims of protection.”
Why it matters
As a result of this rule, more asylum seekers are expected to be denied legal permission to stay in the country. Practitioners need to understand that cases referred to immigration courts face significantly lower approval rates than those decided by asylum officers at USCIS.
Asylum approvals are now at their lowest in at least two decades. This shift accelerates that downward trend by channeling more applications into a system designed for deportation proceedings rather than asylum adjudication.
The changes come even as hundreds of thousands of temporary protected status (TPS) holders are poised to lose the legal ability to work and live in the U.S. and are seeking additional avenues to stay, including asylum. The referral rule will make asylum a less viable safety valve for those TPS recipients.
Way forward
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Review pending cases: If you have asylum applications pending at USCIS, contact the asylum office to understand whether your case falls under the new referral criteria. Request the agency’s internal guidance on what triggers a referral.
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Adjust client expectations: Counsel clients that cases referred to immigration court face materially lower approval rates. Consider whether alternative forms of relief (cancellation of removal, VAWA, U visa, T visa) remain viable at the immigration court stage.
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Accelerate filings: If your client has an asylum claim, prioritize filing at USCIS before the backlog referrals accelerate. Applications filed earlier may benefit from the asylum officer track before the backlog reduction kicks in.
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Monitor public comment period: Though the rule is effective immediately, USCIS is still collecting public comments. File comments with https://www.regulations.gov if you represent affected populations or have procedural concerns to raise.
Disclaimer
This article is for informational purposes only and does not constitute legal advice. Fola Form is a software platform, not a law firm. Immigration policy can change without notice. Consult a licensed immigration attorney to understand how this rule affects your specific case, and verify all guidance against the primary source linked above and current USCIS procedures.