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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

Michigan Law Firm - Warner Norcross + Judd LLP

On Feb. 20, 2026, the Department of Homeland Security (DHS) announced a proposed rule intended to strengthen screening of asylum seekers and reduce what it characterizes as fraudulent or meritless asylum applications. A central component of the proposal would significantly alter access to employment authorization for individuals with pending affirmative asylum claims.

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Under the proposed rule, if the average processing time for affirmative asylum applications exceeds 180 days, USCIS would pause acceptance of new employment authorization document (EAD) applications based on those pending asylum filings.

In practical terms, once system-wide processing delays exceed six months, asylum applicants would be unable to apply for work authorization.

DHS frames this mechanism as a deterrent to frivolous filings and a tool to reduce backlog pressures. From an economic and workforce standpoint, however, the design raises a structural question: does tying work authorization eligibility to average processing time filter out weak claims, or does it suppress all claims during periods of systemic delay?

For employers, that distinction is critical.

The Current Backlog Environment

The proposed 180-day trigger must be evaluated against present adjudication realities. USCIS currently faces more than 1.4 million pending affirmative asylum applications. Immigration courts are managing nearly 3.4 million pending cases nationwide. Although Congress approved a $170 billion immigration enforcement package, less than 8 percent of that funding is allocated to immigration courts, where cases are adjudicated. At the same time, nearly 100 immigration judges were fired or forced out in 2025.

In many jurisdictions, processing times already exceed 180 days. If that remains the case, the proposed rule would effectively suspend access to work authorization not because of individual case merit, but because of overall system delay. From a workforce planning perspective, this introduces a new layer of unpredictability. Work authorization would no longer depend solely on statutory eligibility or case progress, but on macro-level agency processing metrics.

Economic Survival and Application Behavior

DHS has stated that employment authorization has become an incentive for filing non-meritorious asylum claims. While incentive structures are a legitimate policy concern, the 180-day trigger applies system-wide and does not distinguish between strong and weak applications. Asylum applicants are generally ineligible for most federal public benefits and often lack access to stable financial support. Work authorization is not simply a benefit; it is frequently the primary means of economic survival. If applicants cannot obtain employment authorization while waiting for adjudication — particularly when that wait may extend well beyond six months — the financial viability of pursuing a claim diminishes substantially.

The likely behavioral impact may not be limited to deterring fraudulent filings. It may reduce overall application volume, including from individuals with potentially meritorious claims, because the economic risk of remaining in the United States without lawful employment becomes unsustainable. For employers, that reduction in participation has labor market consequences.

Labor Market Context and Sector Exposure

The proposed change arrives during a period of measurable strain in several labor-intensive industries. Recent data indicates:

98,000 fewer employed hospitality workers from Dec. 2024 to Dec. 2025.

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A $1.2 billion (5.5%) decline in tourism revenue between Sept. 2024 and Sept. 2025.

2.5 million fewer international visitors in 2025, even as global tourism increased.

Federal Reserve research suggesting that declines in unauthorized immigration have a near one-for-one relationship with employment growth, particularly in construction and manufacturing.

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Asylum-based EAD holders are frequently employed in sectors such as hospitality, food service, construction, warehousing, logistics, healthcare support and light manufacturing. National research on humanitarian immigrants consistently shows strong labor force participation rates once work authorization is granted, often comparable to U.S.-born workers within a short integration period.

If work authorization availability contracts during periods of backlog — precisely when adjudication delays are longest — labor supply in these sectors may tighten further. Employers in high-turnover industries may experience longer vacancy durations, increased overtime costs, or greater difficulty stabilizing their workforce.

Operational Implications for Employers

For employer clients, the practical considerations are immediate and operational rather than ideological. Key areas to monitor include:

Workforce exposure to asylum-based EAD holders and reverification timelines.

Increased hiring competition in labor-constrained sectors.

Greater reliance on capped or seasonal visa categories such as H-2A or H-2B.

Potential wage inflation pressures in certain geographic markets.

I-9 compliance complexity if EAD issuance patterns become less predictable.

If EAD eligibility fluctuates based on average processing times, workforce forecasting becomes more difficult. Employers value predictability in authorization timelines. A system in which eligibility can pause due to macro-level delays introduces uncertainty into staffing models.

Enforcement Expansion and Adjudication Capacity

Immigration enforcement spending has expanded significantly in recent years. At the same time, adjudication resources remain constrained. When enforcement increases without proportional adjudication capacity, backlogs tend to grow. Conditioning work authorization on processing speed effectively links workforce participation to institutional capacity.

From an economic standpoint, this creates a feedback loop:

Labor shortages intensify in affected sectors.

That cycle may reduce application numbers, but not necessarily through case-by-case merit screening. Instead, it may operate as a broad participation constraint during systemic delay.

The Workforce Policy Question

The proposed rule reflects a policy judgment that reducing incentives will improve system integrity. For employers, the broader workforce question is whether restricting work authorization during periods of delay enhances adjudication quality or simply reduces available labor supply. Individuals with pending asylum claims are physically present in the U.S. If they are unable to work lawfully for extended periods, the economic effects are not neutral. They impact regional labor markets, hiring stability and operational costs.

As the rule moves through the public comment process, employers may wish to evaluate how fluctuations in asylum-based work authorization could affect long-term staffing models and workforce resilience strategies.

Immigration policy debates are often framed in legal or political terms. For businesses, however, they are also labor market variables. The intersection between adjudication capacity and workforce participation will be one of the most consequential economic aspects of this proposal in 2026.

Talent Without Borders

Partner

Sarah R. Bileti

Senior Counsel

Daniel C. “Dan” Persinger

Associate

Christopher M. LeClair

Alexis N. Tillery

Immigration

Labor and Employment

Asylum Work Authorization and the U.S. Labor Market: What Employers Should Know About DHS’s Proposed Rule

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Asylum Work Authorization and the U.S. Labor Market: What Employers Should Know About DHS’s Proposed Rule

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