The Trump administration has formally proposed a regulation that would fundamentally alter how asylum applicants can obtain work authorization. On Friday, the administration proposed a regulation that would dramatically restrict work permits for asylum-seekers, dismantling a 30-year-old rule that has governed asylum-based employment authorization documents (EAD / Form I-765).
What changed
Since the 1990s, U.S. law has allowed immigration officials to grant work permits to asylum applicants if their cases have been pending for at least 180 days, generally allowing asylum applicants to request a work permit 150 days after they make their claim and be granted the permit after another 30 days.
The proposed rule would replace this framework with two major changes:
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Indefinite pause on all asylum work permit applications. The proposed regulation would suspend the acceptance of asylum work permit applications until U.S. Citizenship and Immigration Services reaches the point where it decides all asylum cases within an average of 180 days. That requirement would almost certainly amount to indefinite pause on asylum-related work permits, given current USCIS backlogs.
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Extended eligibility waiting period. The Department of Homeland Security proposal also stipulates that asylum-seekers would only qualify for a work permit a year after they apply for asylum, increasing the eligibility wait period from 180 days to 365 days.
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Disqualification of undocumented entrants. The rule proposed to disqualify migrants who crossed the U.S. illegally from work permit eligibility, unless they told immigration officials within 48 hours of entering the country that they were fleeing persecution.
The proposed regulation is subject to a 60-day period during which the public can file comments in support or opposition to the changes, and it would need to be converted into a final rule before it can take effect.
Why it matters
The practical effect is a near-total halt to asylum-based work authorization for the indefinite future. Current USCIS processing times for affirmative asylum cases exceed 180 days on average by a wide margin—the agency will not meet that threshold in foreseeable time. The effort seeks to curtail what Trump administration officials have identified as a “magnet” factor that attracts illegal immigration: the practice of some economic migrants using the asylum system to work and live in the U.S. while their petitions are reviewed, a process that typically takes years to complete due to the backlog of cases.
For your clients:
- New filers: Expect all I-765 applications based on pending asylum claims to face automatic denials or suspensions until USCIS demonstrates 180-day average processing times (unlikely in the near term).
- Existing pending cases: Clients with approved asylum EADs or pending I-765 applications filed before the rule finalizes should document their filing dates and adjudication basis immediately. The rule may not apply retroactively, but amendment or reissuance could trigger scrutiny.
- Undocumented entries: The 48-hour rule creates an extremely narrow window for credible-fear screeners and applicants to establish persecution intent—missed, and work permit eligibility may be forever forfeited.
- Defensive asylum (court) claims: This rule affects only affirmative (USCIS) asylum work permits. Immigrants in removal proceedings may still pursue I-765 relief under 8 CFR § 274a.12(c)(8), but only if they can qualify through an EOIR-based pathway. Immigration judges are not bound by this USCIS rulemaking, though DHS may seek parallel restrictions in EOIR rules.
Way forward
- File I-765 applications immediately if your client has a pending affirmative asylum case and the notice of filing predates the final rule effective date. Document approval dates and basis to preserve grandfathering claims.
- Monitor the Federal Register for the NPRM publication, 60-day comment deadline, and Final Rule docket. Submit comments if you practice asylum law; the notice will cite OMB docket number(s) and comment procedures.
- Pivot to defensive asylum strategy where possible. If your client has not yet been placed in removal proceedings, evaluate whether a Notice to Appear (NTA) may be imminent. If so, file defensive asylum in immigration court rather than affirmative at USCIS, and preserve I-765 eligibility under statutory and regulatory pathways available to respondents.
- Advise clients of the 48-hour rule at the initial interview. If a client entered without inspection (EWI), they must inform immigration authorities within 48 hours of entry that they fear persecution in their home country. Recommend early consultation with an immigration attorney and credible-fear interview preparation.
Disclaimer
This article is provided for informational purposes only and does not constitute legal advice. Articles.folaform.com is a software platform, not a law firm. Do not rely on this summary as a substitute for consultation with a licensed immigration attorney who can review your specific case, factual record, and applicable law. Immigration policy changes without notice; always verify against the primary source and current agency guidance before advising clients or filing applications. The proposed rule described here is not final and may change during the comment and finalization process.