The Trump administration is attacking the right to seek asylum in the United States. From separating asylum seekers from their children, to legally barring people from applying for protection and forcing them to remain in harsh conditions in Mexico, the administration has used every tactic it can think of to deny rights to refugees. Its most recent approach is a cruel attempt to starve out those who have lawfully applied for asylum in the U.S. by denying them the right to work while their case is pending. The administration’s new proposed regulation will not stop people from applying for asylum, but will force asylum seekers and their families into poverty or into the underground economy while their cases pend for years in an increasingly backlogged immigration court.
In November, the Department of Homeland Security (DHS) issued a new proposed rule that states that those who lawfully applied for asylum, but entered the U.S. without inspection, will not be eligible for a work permit while their asylum case pends. In 2018, the Trump administration attempted to bar those who entered the U.S. irregularly from seeking asylum at all. This attempt was clearly contrary to long-established asylum law and was rightfully blocked in the courts.
Now the administration is trying a new method to get at the same result. Currently, those who apply for asylum in the U.S. must wait at least 150 days after they file their application to apply for a work permit and the government cannot approve a work permit until at least 180 days have passed. This waiting period is already difficult enough for asylum seekers because they must survive at least half a year without the ability to financially support themselves and their families. In practice, the waiting period is often much longer because asylum seekers cannot apply for asylum and start the 150-day waiting period until their case is filed by the government in court, which can take many months — and even years, in some cases.
Under the new regulations, these asylum seekers will not be eligible for a work permit at all. Under the Trump administration, the immigration court backlog has nearly doubled to more than 1 million cases since 2018. This means that asylum seekers must often wait many years for their claims to be adjudicated.
Furthermore, even those who entered the U.S. lawfully or at a port of entry will have to wait 365 days after their asylum application is filed to apply for a work permit under the new rule. If those who entered lawfully did not apply for asylum within the first year of entry (which is a general requirement to seek asylum in the U.S.) they will also be barred from receiving a work permit while their case pends. Many of the people who did not apply for asylum within the first year after entry have a legally valid reason for the delay which can be excused. But under the new rule, applicants can only qualify for a work permit once an asylum officer or immigration judge determines their reason is valid. As asylum seekers will often not see an asylum officer or immigration judge for many years, they will effectively be denied work permits while they wait, even if they would be legally entitled to them.
To expect asylum seekers to spend years without the ability to work is an underhanded attempt to deny them the right to apply for asylum at all and will have severe consequences. Most asylum seekers will be forced to work unlawfully in the underground economy where workers are exploited by employers. Employers exploit workers by paying them below minimum wage, forcing them to work in dangerous conditions, or unjustly withholding their wages.
The denial of a work permit will also harm asylum seekers’ ability to develop productive careers and become financially independent in the U.S. if they eventually do win their asylum cases. The Trump administration has falsely claimed that refugees and immigrants are dependent on government services and a drain on public budgets, yet under this regulation it will not allow them the opportunity to work to support themselves and their families. Asylum seekers who end up winning their cases could end up having legal difficulties in the future when they apply for permanent residency if they worked unlawfully in the United States.
Having lost its battle to completely deny these asylum seekers the right to make their claims, the new proposed regulation would cruelly punish a vulnerable group who can least afford it.
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