The Department of Homeland Security published a proposed rule last month that would increase the time asylum-seeking aliens must wait before applying for work authorization. Media reports have treated it like a harsh, draconian change. But if anything, the final rule should go even further to prevent asylum fraud.

An alien in the U.S. cannot obtain an employment authorization document as a stand-alone immigration benefit. Rather, this document can only be granted in conjunction with another immigration benefit, such as asylum or Temporary Protected Status. What should surprise Americans is that aliens can receive work authorization while the application for that benefit is merely pending instead of having to wait until that application is granted.

In the case of asylum, a decades-long policy has allowed asylum applicants to apply for permission to work as soon as five months after applying for asylum, so that they can receive the employment authorization document after six months. This policy has been a significant enticement for asylum fraud.

The proposed rule would increase asylum applicants’ wait for employment authorization to a minimum of one year. It would also pause acceptance of asylum-related applications for employment authorization whenever the processing time exceeds 180 days for 90 consecutive days. U.S. Citizenship and Immigration Services would then resume accepting applications for employment authorization whenever the average asylum application processing time is less than or equal to 180 days over a period of 90 consecutive days.

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This is an overly complicated half-measure to discourage asylum fraud. The final rule should be simpler and more far-reaching, simply requiring asylum applications be granted before aliens can obtain work authorization.

The Immigration and Nationality Act, as amended by Congress in 1996, requires a minimum 180-day wait for asylum applicants seeking work authorization. That does not mean an alien must be given work authorization after six months, or even after 12 months. It just means an alien cannot be given an employment authorization sooner than six months after the date of his asylum application.

The Trump administration published a 2020 rule to extend the wait to 365 days and remove the 30-day processing requirement, along with other changes. Of course, the Left sued, claiming the rule was invalid because Chad Wolf had not been lawfully serving as acting Homeland Security secretary at the time it was adopted. Activist judges agreed and vacated the rule, so the Biden administration stopped applying the 365-day wait and reverted to the earlier six-month wait. This new Trump administration proposed rule would again increase the waiting period to 365 calendar days.

The Department of Homeland Security notes that initial employment applications have reached a historic high, and the agency’s adjudicative resources are strained. The department believes this rule will reduce frivolous, fraudulent, or otherwise meritless asylum applications that are filed for the sole purpose of obtaining employment authorization.

As of June 30, 2025, more than 1.5 million asylum applications and more than 434,000 asylum-related employment authorization applications were pending—part of more than 1.8 million total pending employment applications of various types. Meanwhile, an additional 2.3 million asylum applications are pending among the Justice Department’s 3.3 million backlogged immigration court cases.

These asylum cases can take years to be adjudicated, which is why aliens in deportation proceedings so often file asylum applications—to buy more time in the U.S. That, and the accompanying opportunity to work make a fraudulent asylum application a low-risk and high-reward proposition, serving as “a magnet pulling aliens into the U.S. illegally.”

After flooding Homeland Security and Department of Justice with frivolous and fraudulent asylum and employment applications—thereby straining government resources and increasing application processing time—immigration attorneys commonly sue the department for taking too long to adjudicate the applications. It is time to end this systematic exploitation of our immigration system.

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The Department of Homeland Security states in its proposed rule that it considered ending employment authorization for pending asylum applicants altogether. The agency decided not to pursue that course of action “at this time,” hoping to achieve the same reduction in fraud “through less severe means.” But it added that if this rule proves ineffective or is enjoined, the department will likely re-evaluate its described alternative options.

It could take many years to decrease its current asylum processing time to 180 days or less. So if this tethering of employment authorization to asylum processing times remains in the final rule, initial asylum-related employment applications will be paused for years. Nonetheless, this half-measure is undesirable for two reasons.

First, it puts pressure on adjudicators to accelerate asylum application adjudications, to decrease the average processing times. This will likely result in rubber-stamp grants of asylum applications, because approvals are easier and faster than denials, which trigger additional paperwork and supervisory levels of review. Second, this rule adds unpredictability and disruption to the application process as the government switches the entire application process on and off.

It would be more principled and predictable to stop granting work authorizations until asylum applications are granted. This would significantly decrease the number of frivolous and fraudulent asylum applications, decrease the backlog, and decrease asylum processing times, thereby shortening the time legitimate asylum applicants must wait to receive work authorization. It might also encourage many fleeing persecution to apply for protection as refugees before they come to the U.S., which would be better for all involved than this overwhelming of the asylum system.