Labor & Employment Law Daily Wrap Up, FEDERAL REGULATIONS—Homeland Security has proposed changes for employment authorizations based on pending asylum applications, (Feb 20, 2026)

By Brandi O. Brown, J.D.

The proposed rule would allow USCIS to pause receipt of initial EAD applications based on certain criteria and only allow them to resume based on another, which could result in years-long pauses, preventing applicants from even applying.

U.S. Citizenship and Immigration Services (USCIS) is proposing to modify regulations governing applications for asylum and withholding of removal and employment authorization based on a pending asylum application. The proposed rule would change requirements for immigrants requesting employment authorization and an employment authorization document (EAD) based on a pending application.

Changes include pausing acceptance of EAD applications from asylum applicants during periods when affirmative asylum average processing time exceeds 180 days, extending the waiting period to apply for employment authorization from 180 to 365 days, changing EAD application processing time requirements, and adding eligibility requirements.

Biometrics. Among other things, the proposed rule mandates certain biometrics, with failure to attend the appointment resulting in automatic denial. The proposed provision at 8 CFR 208.7(a)(1)(i) requires biometrics for all aliens applying for EADs based on pending asylum applications. The new categorical biometrics provision would allow DHS to conduct more in-depth screening and vetting.

Overall eligibility limitation possible. The rule also adds a system-wide eligibility limitation, allowing USCIS to pause receipt of all initial 8 CFR 274a.12(c)(8) EAD applications whenever average affirmative asylum processing time exceeds 180 days for 90 consecutive days. EAD filing eligibility will resume only when the processing time drops back to 180 days or less. This could result in years-long pauses, preventing applicants from even applying.

Discretionary adjudication, criminal bars. Notably, EAD adjudication is explicitly identified as discretionary, with USCIS being allowed to deny eligibility based on a more expansive list of reasons. The proposed amendments at 8 CFR 208.7(a)(1)(iv) would expand the list of criminal ineligibilities for employment authorization, including the incorporation of criminal bars to asylum, specifically where there is reason to believe that the applicant may be barred from a grant of asylum due to one of the criminal bars to asylum under sections 208(b)(2)(A)(ii)-(iii) and the proposed amendments at 8 CFR 208.7(a)(1)(v) would allow DHS to prioritize for adjudication asylum applications for which derogatory information is discovered during the EAD adjudications.

Also, applicants who enter the U.S. without inspection after the rule’s effective date are barred from EAD eligibility, unless they express fear or intent to seek asylum within 48 hours of entry, or show good cause for the illegal entry, or are unaccompanied children (UACs).

Comments. Comments to the proposed rulemaking are due within 60 days after the date of publication of the proposed rule in the Federal Register, which is scheduled for February 23, 2026. Comments on the entirety of this proposed rulemaking package, identified by DHS Docket No. 2025-0370, may be made through the Federal eRulemaking Portal.

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