DHS Proposed Rule on Asylum Work Permits: What It Means for Your Case

On February 20, 2026, the Department of Homeland Security published a proposed rule that could fundamentally change how asylum seekers obtain work permits in the United States. If finalized, this rule would pause the issuance of Employment Authorization Documents (EADs) for all new asylum applicants until average asylum processing times drop to 180 days or less — a threshold DHS itself estimates could take anywhere from 14 to 173 years to reach.

This is one of the most significant proposed changes to asylum-based employment authorization in decades. If you have a pending asylum case, are waiting for a work permit, or currently hold an asylum-based EAD, you need to understand what this means and what steps to take right now.

What Does the Proposed Rule Do?

The proposed DHS rule makes several major changes to how asylum seekers can obtain work authorization:

1. Pausing All New Asylum Work Permits

The most dramatic change is that DHS would stop issuing new EADs to asylum applicants entirely until the average processing time for affirmative asylum applications drops to 180 days or less. Currently, the USCIS asylum backlog includes millions of cases, with average wait times measured in years, not months. DHS itself acknowledged that reaching the 180-day threshold could take between 14 and 173 years under current conditions.

This means that anyone who files a new asylum application after the rule takes effect would have no pathway to legal employment while their case is pending — potentially for many years.

2. Barring Work Permits for Unauthorized Entry

The rule would generally prohibit migrants who entered the United States without authorization from receiving new work permits or renewing existing ones. This applies to anyone who crossed the border outside of an official port of entry without being inspected by a border officer.

There is a narrow exception: individuals who notified U.S. border authorities within 48 hours of entering that they had a fear of persecution or torture or another urgent reason for crossing illegally could still be eligible. However, this exception is extremely limited and would be difficult for many asylum seekers to meet.

3. More Restrictive Eligibility Criteria

Beyond the pause, the proposed rule would create additional barriers to work permit eligibility for asylum applicants. DHS stated that a work permit "is not an entitlement" and framed the issuance of EADs as a discretionary action by the DHS Secretary. This means even if the pause is lifted in the future, the criteria for obtaining a work permit would be significantly harder to meet.

4. Reducing Incentives for Filing

DHS explicitly stated the rule is designed to "reduce the incentive to file frivolous, fraudulent, or otherwise meritless asylum claims." The administration's position is that many asylum applicants file claims primarily to obtain work authorization rather than because they have genuine claims of persecution.

Who Would Be Affected?

Understanding whether this proposed rule affects you depends on your specific situation:

Most Likely Affected

• New asylum applicants — anyone who files an asylum application after the rule takes effect would be subject to the EAD pause
• People who entered without inspection — those who crossed the border outside of an official port of entry without being processed by border authorities
• Pending EAD applications — if the rule is finalized, new applications for asylum-based work permits could be denied or held indefinitely
• EAD renewals — people with existing asylum-based EADs who entered without authorization could be unable to renew when their current permits expire

Less Likely Affected (But Should Still Prepare)

• Current EAD holders — if you already have a valid asylum-based EAD, it remains valid until its expiration date. However, renewal could be affected
• People who entered at ports of entry — those who presented themselves at official border crossings may have stronger arguments for eligibility
• Cases already in process — USCIS may continue processing EAD applications that were filed before the rule takes effect, depending on the final rule's transition provisions
• Those with pending renewals — the automatic 540-day extension for pending EAD renewals (under category C08) may still apply to timely filed renewals, but this is uncertain

What About Current EAD Holders?

If you currently hold a valid asylum-based EAD, your work permit remains valid until its printed expiration date. The proposed rule does not retroactively cancel existing work permits. However, the renewal process is where problems could arise.

If the rule is finalized before your EAD expires and you entered the country without authorization, you may be unable to renew. This would effectively end your legal work authorization when your current card expires, even if your asylum case is still pending.

This is why it is critical to take action now:

• If your EAD expires within the next 6-12 months, file your renewal application as soon as possible — before the rule is finalized
• If your renewal is already pending, monitor the status closely and keep records of your filing receipt
• Document your entry circumstances — gather any evidence that you entered at an official port of entry or notified border authorities within 48 hours

Timeline: When Could This Take Effect?

The proposed rule is not yet law. Here is the expected timeline:

1. February 24, 2026 — Rule formally published in the Federal Register
2. 60-day comment period — Public can submit comments to DHS (deadline approximately late April 2026)
3. DHS review — DHS reviews public comments and may revise the rule
4. Final rule published — Could happen months or even years after the comment period, but given the administration's priorities, a faster timeline is possible
5. Legal challenges — Immigration advocacy organizations will almost certainly file lawsuits challenging the rule. Courts could block or modify the rule through injunctions

Realistically, the earliest this rule could take full effect is mid to late 2026, but legal challenges could delay implementation significantly. The previous Trump administration's similar efforts were frequently blocked by courts, and this rule is likely to face similar challenges.

Will This Rule Survive Legal Challenges?

The proposed rule will face significant legal obstacles. Here is why:

• Statutory authority questions — Federal law gives asylum seekers the right to apply for work authorization 180 days after filing their applications. The proposed rule essentially eliminates this right by making it impossible to meet eligibility requirements
• Due process concerns — Courts have previously held that the government cannot create conditions that effectively force asylum seekers to work illegally or live in destitution while their cases are pending
• Administrative Procedure Act (APA) — The rule may be challenged as arbitrary and capricious if DHS cannot adequately justify the estimated 14-173 year timeline for resuming EAD issuance
• International obligations — The rule could conflict with U.S. obligations under the Refugee Convention and Protocol

However, the current Supreme Court has shown more deference to executive authority on immigration matters, and the outcome of legal challenges is uncertain. You should not assume courts will block this rule. Prepare as if it will take effect.

What Should You Do Right Now?

Whether you are currently an asylum applicant, about to file, or holding an asylum-based EAD, take these steps immediately:

If You Have a Pending Asylum Case Without a Work Permit

1. Apply for your EAD now — if your asylum application has been pending for more than 150 days, file Form I-765 immediately. Do not wait.
2. Gather entry documentation — collect any evidence showing how and where you entered the United States
3. Consult an immigration attorney — understand your specific eligibility before the rule changes

If You Currently Hold an Asylum-Based EAD

1. Check your expiration date — know exactly when your EAD expires
2. File for renewal early — if your EAD expires within the next year, file the renewal now to get it in before any rule change
3. Keep all filing receipts — documentation of timely filing is critical for the automatic extension provision
4. Explore alternative work authorization — discuss with your attorney whether other work permit categories might apply to your situation

If You Are About to File for Asylum

1. File as soon as possible — getting your application on file before the rule is finalized could be important for transition provisions
2. Document everything — your manner of entry, any interactions with border authorities, and the circumstances of your arrival
3. Talk to a lawyer first — the landscape is changing rapidly, and professional guidance is more important than ever

The Bigger Picture

This proposed rule is part of a broader effort by the Trump administration to reduce both legal and illegal immigration. It follows other recent changes including the $102 annual asylum fee, increased enforcement operations, expanded expedited removal, and proposed reductions to legal immigration pathways.

For asylum seekers, the cumulative effect of these changes is significant. The system is becoming harder to navigate, deadlines are tighter, and the consequences of mistakes are more severe. This makes professional legal representation more important than it has ever been.

At Modern Law Group, we help asylum seekers understand and respond to changing immigration law. Whether you need to file an initial asylum application, apply for or renew a work permit, or develop a strategy for your case in light of these proposed changes, our attorneys are ready to assist. Do not wait until the rule is finalized — contact us today to protect your rights and your ability to work in the United States.