Public Comment on Proposed Rule

This comment is submitted in response to the Department's proposed rule concerning employment authorization eligibility for individuals with pending asylum applications. The proposal is presented as a regulatory action intended to improve the functioning of the asylum adjudication system by discouraging non-meritorious filings and reducing the volume of pending cases awaiting adjudication. The Department explains that current processing delays and the accumulation of pending applications have produced an administrative backlog that strains adjudicative resources and delays decisions for applicants seeking protection.

The rule seeks to address this condition by modifying the eligibility framework for employment authorization during the pendency of an asylum application. Specifically, the proposal adjusts the waiting period before employment authorization eligibility, alters renewal procedures, and conditions continued eligibility on procedural and conduct-related factors. The Department states that these changes are designed to remove perceived incentives to file applications lacking a protection-based basis and thereby reduce pressure on the adjudication system.

The Department's justification identifies three interrelated policy objectives:

1. Improve adjudicative efficiency by reducing the number of pending asylum cases
2. Discourage filings submitted for purposes other than protection from persecution
3. Preserve resources for the timely adjudication of claims grounded in statutory eligibility

Accordingly, the analysis below evaluates the relationship between the rule's mechanism — modification of employment authorization eligibility during pendency — and the operational condition the Department seeks to resolve — the accumulation of cases requiring adjudication.

The proposal therefore operates on the premise that employment authorization eligibility during pendency influences filing behavior and that modifying this eligibility will affect the volume of cases entering or remaining within the adjudicative queue.

This comment proceeds from the Department's stated objective rather than from a disagreement with the objective itself. The administrative goal of reducing non-protection-motivated filings and improving adjudicative efficiency is understood and accepted for purposes of analysis. The question addressed in the following sections is whether the regulatory mechanism selected in the proposed rule directly affects the administrative variables that produce the backlog identified by the Department.

The proposed rule modifies the conditions under which an applicant may obtain and maintain employment authorization while an asylum application remains pending. The mechanism selected by the Department therefore operates during the period between the filing of an application and the issuance of a final adjudicative decision. The rule does not change eligibility to apply for asylum, the intake of applications, or the procedural requirement that each filed case be adjudicated to completion.

To evaluate the rule's effectiveness, the relevant administrative question is not whether the conditions of waiting are altered, but whether the number of adjudications the Department must perform is reduced.

An asylum backlog exists when the number of pending cases exceeds the rate at which adjudications can be completed. This condition is determined by two variables: the volume of cases in the adjudicative queue and the adjudicative capacity available to resolve them. A regulatory mechanism capable of reducing backlog must therefore operate on at least one of these variables by either reducing the number of cases requiring adjudication or increasing the rate at which adjudications occur.

The rule instead regulates employment authorization eligibility during pendency. Because the filing of an asylum application and the government's obligation to adjudicate that application remain unchanged, every application submitted before or after the rule's implementation continues to require review, background checks, interview scheduling when applicable, and issuance of a decision. The Department's adjudicative workload therefore remains determined by the number of pending filings rather than by the employment eligibility conditions attached to those filings.

The proposed rule does not establish a mechanism through which a pending case exits the adjudication queue prior to a decision. Nor does it alter the procedural steps required to complete adjudication. As a result, the number of adjudications required to resolve the existing and future caseload remains constant regardless of employment authorization eligibility during waiting.

The regulatory action therefore modifies the economic and practical conditions under which the waiting period occurs but does not change whether the waiting period exists. The backlog-producing variable — the quantity of cases requiring adjudication — remains unaffected by the rule's mechanism.

The operational consequence is that the Department continues to intake the same categories of filings and continues to adjudicate each case individually to completion. The mechanism affects applicant circumstances during pendency rather than the administrative requirement that the case be processed. Accordingly, the relationship between the regulatory change and the backlog condition depends on whether altering waiting conditions alone can reduce the number of cases requiring adjudication.

The Department identifies the accumulation of pending asylum cases as the administrative condition the proposed rule seeks to improve. The effectiveness of the rule therefore depends on whether the selected mechanism — modification of employment authorization eligibility during pendency — alters the number of cases the Department must adjudicate.

The filing of an asylum application creates a procedural obligation for the government to process the claim to completion. Once submitted, the application remains in the adjudicative queue until one of two events occurs: a final decision is issued or the applicant affirmatively withdraws the filing. The proposed rule does not introduce a new pathway for early case resolution, does not remove pending cases from the queue, and does not change the requirement that each filed application receive individual adjudication.

Accordingly, the total number of adjudications required by the Department remains determined by the number of applications filed, not by the conditions attached to those applications while they are pending.

A regulatory measure designed to reduce backlog must alter at least one of the following operational variables:

• the number of applications entering the queue
• the number of applications remaining in the queue
• the rate at which applications are adjudicated

The rule does not modify filing eligibility and therefore does not prevent applications from entering the queue.

The rule does not create a mechanism for removing pending applications prior to adjudication.

The rule does not increase adjudicative capacity or reduce the steps required for adjudication.

Instead, the rule alters the circumstances experienced by applicants during the period of pendency. The number of pending cases — the variable that produces backlog — therefore remains unchanged.

The Department's reasoning assumes that modifying employment authorization eligibility will influence filing behavior sufficiently to reduce case volume. However, the regulatory text does not operate at the point of filing and does not condition the acceptance of an application on employment eligibility. An applicant may still file, and once filed, the Department must still adjudicate the claim regardless of employment authorization status.

This produces a structural disconnect: the rule regulates a consequence of filing while leaving the filing and adjudication process intact. Because backlog arises from the presence of unresolved cases rather than the living conditions attached to those cases, the mechanism does not directly address the operational cause of the identified problem.

The administrative workload associated with each filing — intake, background checks, scheduling, review, and decision — persists independently of employment authorization eligibility. As long as each case remains pending until adjudicated, the total number of adjudications required by the Department remains constant.

The result is that the proposed rule modifies the environment surrounding pending cases without reducing the number of pending cases themselves. Consequently, the relationship between the regulatory mechanism and the stated objective depends on an indirect behavioral effect rather than a direct administrative effect on case volume.

Because the proposed rule does not change whether a filed asylum application must be adjudicated, its primary administrative effect is not the reduction of case volume but the alteration of the conditions under which cases remain pending. Each application continues to require intake processing, security screening, scheduling, review, and a final determination. The Department's adjudicative workload therefore remains tied to the number of unresolved filings rather than to the employment eligibility status of the applicants.

The rule separates two concepts that operate independently in the adjudication system: lawful procedural presence and authorization to work. An applicant with a pending case remains in a period of authorized stay while the government resolves the claim, and the proposal does not change this status. The individual therefore continues to reside within the Department's jurisdiction and continues to require case management, notifications, and adjudicative action until a final decision is issued.

As a result, the rule does not shorten the period of administrative responsibility the Department bears over each case. Instead, it modifies the economic circumstances of applicants during that period. The number of pending matters requiring agency attention remains the same, and the duration of pendency remains determined by processing capacity and scheduling timelines.

Operationally, the system after implementation retains the same structure:

• applications continue to be filed
• applications continue to remain pending until adjudicated
• applications continue to require full procedural processing

The Department therefore administers the same caseload under different conditions rather than a smaller caseload under the same conditions.

This distinction has practical implications for resource allocation. Because adjudicative steps are unchanged, officer workload, interview scheduling, and decision requirements remain constant. The rule alters the context surrounding pending cases but does not alter the volume of cases requiring adjudication. The backlog condition — defined by the accumulation of unresolved applications — therefore persists as an administrative matter even if applicant behavior during the waiting period changes.

The regulatory action consequently affects how cases exist within the system but not how many cases exist within the system. The Department continues to process the same number of filings through the same adjudicative pathway, and the administrative burden associated with those filings remains tied to case presence rather than employment authorization eligibility.

The preceding sections evaluate the proposed rule within the Department's stated objective of reducing adjudicative congestion by discouraging filings not grounded in protection eligibility. That objective depends on a mechanism that directly affects case accumulation. Because the proposed rule modifies conditions during pendency rather than the presence of cases within the adjudicative queue, an alternative mechanism must operate on the variable that produces backlog: whether a case remains pending.

An administratively available method to address this variable is the creation of a voluntary compliance-registration track coupled with withdrawal of the pending asylum application. Under such a framework, an individual who elects not to pursue protection adjudication may affirmatively exit the asylum process and enter a monitored administrative program governing presence and employment compliance. The defining feature of the mechanism is that enrollment requires the applicant to withdraw the asylum filing. The case therefore leaves the adjudication queue immediately and no further adjudicative action is required.

This mechanism differs from a waiting-condition regulation in that its effect occurs at the level of case volume rather than case circumstances. Each enrollment produces a measurable reduction in pending caseload because the Department no longer performs intake processing beyond withdrawal recording, no interview scheduling is required, and no decision must be issued. The adjudicative workload is reduced not through behavioral deterrence but through administrative reallocation of cases to a non-adjudicative track.

The compliance track operates as a sorting mechanism rather than an immigration classification. Individuals seeking protection continue through the asylum process under existing statutory standards. Individuals seeking regulated presence without pursuing a protection claim elect a supervised administrative pathway. The Department therefore preserves the protection adjudication function while reducing the number of cases requiring adjudication.

Because the mechanism is voluntary and requires withdrawal, the administrative effect is immediate and quantifiable. The number of pending asylum cases becomes a function of the number of individuals who choose adjudication rather than a function of how conditions during waiting influence behavior after filing. This aligns the regulatory action with the Department's objective by operating directly on the quantity of cases in the queue rather than indirectly on applicant circumstances during pendency.

The compliance-registration approach therefore addresses the backlog variable identified by the Department: the volume of unresolved applications awaiting adjudication.

The effectiveness of a case-reallocation mechanism depends on whether individuals who do not seek protection adjudication have a practical ability to leave the asylum queue. Under current law, a structural constraint limits this ability. An individual who departs the United States after accruing unlawful presence may trigger a multi-year inadmissibility consequence before becoming eligible to return through standard immigration channels. This consequence operates independently of whether the person ultimately qualifies for a lawful immigration pathway.

Because of this constraint, remaining in a pending asylum posture often functions as the only available method of maintaining a lawful procedural presence while future eligibility options develop. The decision to remain in the adjudication system therefore may reflect risk avoidance rather than a determination to pursue protection adjudication. The administrative result is that the asylum queue contains both applicants seeking protection and applicants maintaining presence until another lawful avenue becomes available.

In such a structure, a waiting-condition rule cannot produce significant voluntary exit from the queue because departure carries a penalty unrelated to the merits of the protection claim. Applicants may rationally remain in adjudication even if they would otherwise choose a non-protection pathway, since leaving the queue requires leaving the country and triggering inadmissibility consequences.

The backlog is therefore stabilized by the absence of a safe administrative off-ramp rather than by the availability of employment authorization.

A compliance-registration track changes this dynamic by creating a domestic administrative alternative to departure. When participation requires withdrawal of the asylum application but does not require exit from the country, individuals can elect a non-adjudicative pathway without incurring external penalties tied to physical departure. The choice then becomes a sorting decision rather than a risk-avoidance decision.

Under this structure, two distinct populations emerge:

The administrative benefit is not derived from discouraging applications through hardship but from enabling accurate self-selection before adjudication resources are committed. Applicants who seek protection remain in the adjudicative process. Applicants who seek regulated presence voluntarily remove their cases from the queue.

This behavioral sorting effect operates before adjudication rather than after denial and therefore reduces the number of cases the Department must resolve. The role of the exit constraint is central: when departure penalties bind individuals to the queue, deterrence during waiting has limited impact; when a non-departure alternative exists, voluntary reallocation becomes operationally feasible.

The compliance-registration mechanism described above operates as a case-management and enforcement-priority framework rather than the creation of a new immigration status. Its function is to reorganize how the Department manages individuals present in the United States while determining whether they pursue protection adjudication or elect supervised compliance outside the asylum process. Because the mechanism concerns administrative handling of cases and eligibility for employment authorization documentation, it can be implemented through existing regulatory authority.

Federal immigration administration historically includes categories of authorized stay and employment eligibility established through regulation and policy guidance rather than statute. Programs such as deferred action, parole-based presence, and other temporary administrative classifications demonstrate that the Department may structure supervised presence and work authorization eligibility without creating a new immigrant visa or permanent status category. The compliance-registration track follows the same model: it defines how the Department exercises discretion over case processing, documentation, and monitoring while statutory eligibility standards remain unchanged.

The operational components fall within existing administrative functions:

• recording voluntary withdrawal of a pending application
• establishing a monitored registration category for individuals under Department supervision
• issuing documentation for employment verification purposes
• defining eligibility conditions for employment authorization by regulation
• setting reporting and compliance requirements
• determining enforcement priorities for individuals in supervised compliance

No statutory criteria for asylum eligibility, admissibility, or permanent immigration benefits are altered. Participants neither receive lawful permanent residence nor bypass existing immigration pathways. They remain within a provisional administrative category subject to termination upon noncompliance. The Department therefore regulates process management rather than immigration classification.

Because the framework governs administrative processing rather than statutory rights, it may be implemented through notice-and-comment rulemaking and agency policy guidance. The Department already determines documentation types, employment authorization categories, and supervisory procedures by regulation. The compliance-registration mechanism applies those same authorities to reallocate cases from adjudication to monitored presence when individuals voluntarily withdraw their applications.

Accordingly, the alternative mechanism is compatible with existing statutory authority and does not require congressional enactment. It functions as a reorganization of administrative handling of cases rather than an expansion of immigration eligibility categories.

Because the compliance-registration mechanism operates by removing cases from the adjudicative queue at the moment of voluntary withdrawal, its administrative effect is quantifiable. The size of the pending asylum caseload becomes a direct function of how many individuals elect adjudication rather than supervised compliance. Unlike a waiting-condition rule, the impact does not depend on estimating behavioral deterrence after filing; it depends on recorded case withdrawals.

Direct Adjudicative Effect

Each enrollment produces the same operational result:

• the case exits the pending inventory
• no interview must be scheduled
• no merits review must be completed
• no decision must be issued

The Department's workload is therefore reduced by one adjudication for each participant. The effect accumulates proportionally to participation and occurs before adjudicative resources are expended. Processing capacity is redirected to remaining cases, shortening resolution time for applicants pursuing protection adjudication.

Queue Composition Effect

When a non-adjudicative pathway exists, applicants self-select before agency resources are committed. The remaining caseload becomes concentrated in claims where adjudication is the desired outcome. The queue therefore shifts from mixed-purpose filings to protection-focused filings without altering statutory eligibility standards.

Administrative Monitoring Effect

Participants in the compliance track remain under Department supervision. The Department retains:

• identity verification
• address reporting
• employment reporting
• background monitoring

The administrative relationship is preserved while adjudicative processing is avoided. The Department maintains awareness of presence without maintaining a pending adjudication.

Workforce Reporting Effect

Because the compliance pathway conditions continued participation on verified employment reporting, economic activity moves into a monitored framework. The Department's interest in compliance oversight is met through documentation and reporting rather than through prolonged adjudicative proceedings.

Systemic Outcome

The operational consequences of the mechanism differ from those of a waiting-condition regulation:

The alternative mechanism therefore affects the variable that defines backlog — the number of unresolved cases — rather than the conditions surrounding those cases. The resulting administrative effect is a reduction in required adjudications and a corresponding concentration of adjudicative resources on protection-based claims.

The Department's stated objective is to reduce adjudicative congestion by discouraging filings not grounded in protection eligibility and to preserve resources for timely resolution of protection-based claims. The effectiveness of any regulatory action therefore depends on whether the mechanism directly affects the accumulation of pending cases.

The proposed rule modifies employment authorization eligibility during pendency. This changes the conditions under which cases remain in the system but does not alter whether those cases remain in the system. Each filed application still requires full adjudication to completion, and the total number of adjudications required by the Department remains determined by filing volume rather than waiting conditions.

The alternative compliance-registration mechanism operates on a different administrative variable. By allowing individuals to voluntarily withdraw pending applications and enter a supervised non-adjudicative pathway, the mechanism removes cases from the adjudication queue before agency resources are committed. The Department's workload is reduced because the number of required adjudications is reduced. The objective of preserving resources for protection-based claims is achieved by reallocating cases rather than by altering living conditions during waiting.

The alternative does not expand statutory eligibility, create a new immigration classification, or grant permanent status. It reorganizes administrative handling of individuals who elect not to pursue protection adjudication while maintaining Department supervision and compliance monitoring.

For these reasons, I respectfully request that the Department consider whether a voluntary withdrawal and compliance-registration framework more directly advances the stated objective of reducing adjudicative congestion and preserving resources for protection-based claims than a rule limited to modifying employment authorization eligibility during pendency.