DHS Proposes 365-Day Wait for Asylum Work Permits

The Department of Homeland Security (DHS) has issued a Notice of Proposed Rulemaking (NPRM) that could significantly delay work authorization for asylum seekers in the United States.

Published in the Federal Register on February 23, 2026, the proposal would extend the waiting period for Employment Authorization Documents (EADs) and introduce a potential “pause” on new filings.

What Changes Is DHS Proposing?

Under the proposal:

• The minimum waiting period to apply for an asylum-based EAD would increase from 150 days to 365 days after U.S. Citizenship and Immigration Services receives a complete Form I-589 (asylum application).
• U.S. Citizenship and Immigration Services (USCIS) would be allowed to stop accepting new EAD applications if the average processing time for affirmative asylum cases exceeds 180 days.

Currently, asylum processing backlogs already exceed that 180-day benchmark. DHS officials acknowledge that, under present conditions, any “pause” could last for years.

Impact on Employers

If finalized, the rule would affect thousands of employers that rely on asylum-based work permits, often known as “c-8” EADs.

Industries expected to be most affected include:

• Hospitality
• Agriculture
• Healthcare
• Gig-economy platforms

Human resources teams may need to:

• Delay onboarding timelines
• Extend I-9 reverification planning
• Explore alternative visa sponsorship options
• Prepare contingency staffing plans

Businesses that depend heavily on asylum-based workers are likely to challenge the proposal during the public comment period.

Alternative Visa Pathways

Employers facing potential disruptions may look to other employment-based visa categories, such as:

• H-2B for temporary non-agricultural workers
• TN for eligible Canadian and Mexican professionals
• O-1 for individuals with extraordinary ability

Each category carries its own eligibility criteria and processing timelines.

Policy Background

The proposal revives elements of Trump-era rules that were blocked by federal courts in 2020.

DHS argues that extending the waiting period would:

• Deter fraudulent asylum applications
• Encourage applicant self-sufficiency
• Align with congressional intent

However, immigrant-rights groups argue that the changes would:

• Push legitimate asylum seekers into financial hardship
• Increase reliance on informal employment
• Create housing instability

Public Comment Deadline

Public comments on the proposed rule are due by April 24, 2026.

Legal analysts anticipate significant responses from:

• Business coalitions
• State workforce agencies
• Humanitarian organizations

If finalized, the rule could face legal challenges, potentially delaying implementation.

What Employers Should Do Now

Companies employing asylum-based workers are advised to:

• Audit their workforce for employees relying on pending EAD renewals
• Monitor USCIS processing times
• Budget for alternative visa sponsorship where possible
• Plan for temporary unpaid leave scenarios

Given the uncertainty and potential for litigation, workforce planning and compliance reviews will be critical in the months ahead.