Work Permits and Executive Authority in the Immigration System

A new episode of the Center for Immigration Studies’ podcast, Parsing Immigration Policy, examines the issuing of employment authorization documents (EADs), the use of executive discretion in granting work permits, and a proposed regulation affecting asylum applicants.

The episode features CIS Director of Regulatory Affairs and Policy Elizabeth Jacobs and Senior Legal Fellow George Fishman discussing how millions of immigrants, including illegal aliens, parole recipients, TPS beneficiaries, DACA recipients, asylum applicants, and temporary visa holders, have received work permits without Congress’s authorization.

According to CIS estimates, roughly 15 million individuals currently possess work authorization and 4.3 million illegal aliens may be eligible for work permits. As a result, USCIS reports that it faces more than 1.7 million pending EAD applications.

The discussion also focuses on a recent DHS regulation that would tighten eligibility for asylum-based work permits by increasing the waiting period from 180 to 365 days and barring applicants who are prima facie ineligible for asylum from receiving employment authorization and requiring the agency to pause acceptance of asylum-based EAD applications when affirmative asylum processing times exceed 180 days. Currently, processing times average over 1,200 days, while a new affirmative asylum applicant could expect to wait decades, according to DHS, before receiving a final decision on their claim.

The episode explains that lengthy asylum processing times have created strong incentives for individuals to file asylum claims primarily to obtain work authorization and remain in the United States for extended periods while cases are pending. USCIS currently faces massive asylum and EAD backlogs, contributing to longer processing times across the immigration system.

The conversation also examines broader legal questions surrounding executive authority to issue work permits under the Immigration and Nationality Act and whether decades of expanding administrative interpretation have effectively allowed the executive branch to operate an immigration system outside the numerical and statutory limits established by Congress.

In his closing commentary, Mark Krikorian, the Center’s executive director and podcast host highlights Acting ICE Director Todd Lyons’ recent announcement that ICE identified more than 10,000 foreign students in the Optional Practical Training (OPT) program who claimed employment with “highly suspect employers” and that this represents “only the tip of the iceberg.” OPT, which allows foreign graduates to work in the United States for up to 12 months, or up to 36 months for STEM graduates, was created through executive action rather than congressional authorization. The Center has called for the elimination of the program many times in the past.

Host

Mark Krikorian is the Executive Director of the Center for Immigration Studies.

Guests

Elizabeth Jacobs is the Director of Director of Regulatory Affairs and Policy at the Center for Immigration Studies.

George Fishman is a Senior Legal Fellow at the Center for Immigration Studies.

Links

DHS Proposes to Amend Asylum Work-Permit Rules to Reduce Fraud and Abuse

DOJ: Asylum Applicants Are Skipping Immigration Court at Record Levels; Their goal all along was work permits, not protection

DHS Issues New Regulation to Automatically Extend the Validity Period of Many Work Permits

Work Authorization Expansion Attracts and Embeds Illegal Immigrants

Government Data Reveal Millions of New Work Permits Issued in 2009

OPT Needs to End

Intro Montage

Voices in the opening montage:

• Sen. Barack Obama at a 2005 press conference.
• Sen. John McCain in a 2010 election ad.
• President Lyndon Johnson, upon signing the 1965 Immigration Act.
• Booker T. Washington, reading in 1908 from his 1895 Atlanta Exposition speech.
• Laraine Newman as a "Conehead" on SNL in 1977.
• Hillary Clinton in a 2003 radio interview.
• Cesar Chavez in a 1974 interview.
• House Speaker Nancy Pelosi speaking to reporters in 2019.
• Prof. George Borjas in a 2016 C-SPAN appearance.
• Sen. Jeff Sessions in 2008 comments on the Senate floor.
• Candidate Trump in 2015 campaign speech.
• Charlton Heston in "Planet of the Apes".