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Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules
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their asylum application is pending.
Such applications are subject to a 365day waiting period that commences when their completed Form I589 is filed. Asylum applicants who establish a credible fear would still be subject to the 365-day waiting period.78
Applicants would still be able to file for their EADs under the c8 category. We analyze the impacts regarding the EAD
filing in two steps, explaining first why filing volumes might decline and related impacts, and then why countervailing factors might mitigate such a decline.
A result of this proposed rule is that asylum applications for some individuals pursuant to this proposed rule could be granted asylum earlier than they would be under current conditions. Since an asylum approval grants work authorization incident to status and USCIS automatically provides an asylum-granted EAD a5
after a grant of asylum by USCIS, some applicants may choose not to file for an EAD based on the pending asylum application under the expectation that asylum would be granted earlier than the EAD approval. This could result in cost savings to some applicants.
There is currently no filing fee for the initial c8 EAD Form I765
application, and the time burden is currently estimated at 4.75 hours, which includes the time associated with submitting two passport-style photos along with the application.79 As stated earlier, the Department of State estimates that each passport photo costs about $10 each. Submitting two passport photos resulting in an estimated cost of $20 per Form I765
application.
Because the c8 EAD does not include or require, at the initial or renewal stage, any data on employment, and since it does not involve an associated labor condition application, we have no information on wages, occupations, industries, or businesses that may employ such workers. Hence, we continue to rely on the wage bounds effective minimum and national average developed earlier. At the wage bounds relied upon, the opportunity cost-savings are $81.27 4.75 hours
$17.11 per hour, and $186.44 4.75
hours $39.25. When the $20 photo cost is included, the cost-savings would 78 A preliminary injunction in Casa de Maryland, Inc. v. Wolf, 486 F. Supp. 3d 928, 935 D. Md.
2020, currently exempts members of certain organizations from this 365-day waiting period.
Such members are subject to the 180-day Asylum EAD Clock.
79 See Instructions for Form I765, Application for Employment Authorization, OMB No. 1615
0040 expires July 31, 2022, https www.uscis.gov/
i-765 last visited May 12, 2021.

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be $101.27 and $206.44 per applicant, respectively. However, some might choose to file for an EAD after being granted asylum, or even if they expect asylum to be granted earlier than the EAD approval, they may want to have documentation that reflects that they are employment authorized.
In the discussion of the possible file volume decline for the Form I589, above, we noted that applicants and family members would continue to submit biometrics as part of their asylum claim, and that, as a result, there would not be costs or cost-savings changes germane to biometrics. For the Form I765c8 category, USCIS
started collecting biometrics, and the associated $85 biometrics service fee, in October 2020.80
The submission of biometrics involves travel to an ASC for the biometric services appointment. In past rulemakings, DHS estimated that the average round-trip distance to an ASC is 50 miles, and that the average travel time for the trip is 2.5 hours.81 The cost of travel also includes a mileage charge based on the estimated 50-mile round trip at the 2021 General Services Administration GSA rate of $0.56
per mile.82 Because an individual would spend an average of 1 hour and 10
minutes 1.17 hours at an ASC to submit biometrics,83 summing the ASC
time and travel time yields 3.67 hours.
At the lowand high-wage bounds, the opportunity costs of time are $62.79 and $144.05.84 The travel cost is $28, which is the per mileage reimbursement rate of 0.56 multiplied by 50-mile travel distance. Summing the time-related and travel costs generates a per-person biometrics submission cost of $90.79, at the low-wage bound and $172.05 at the high-wage bound.85 While the 80 USCIS collects biometrics for Form I765 c8
submissions, but a preliminary injunction in Casa de Maryland, Inc. v. Wolf, 486 F. Supp. 3d 928, 935
D. Md. 2020, currently exempts members of certain organizations from this biometrics collection.
81 See Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives, 78
FR 535 Jan. 3, 2013.
82 GSA mileage rate of $0.56. See GSA, Privately Owned Vehicle Mileage Reimbursement Rates effective January 1, 2021, https www.gsa.gov/
travel/plan-book/transportation-airfare-rates-povrates/privately-owned-vehicle-pov-mileagereimbursement-rates last visited Aug. 4, 2021.
83 See Instructions for Form I765, Application for Employment Authorization, OMB No. 1615
0040 expires July 31, 2022, https www.uscis.gov/
i-765 last visited May 12, 2021.
84 Calculations: Total time burden 3.67 hours
total rate of compensation for the effective wage $17.11 = $62.79; total time burden 3.67 hours
total rate of compensation for the average wage $39.25 = $144.05.
85 Calculations: Opportunity cost of time, effective wage $62.79 + travel cost $28 = $90.79;

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biometrics collection includes the $85
service fee, fee waivers and exemptions are granted on a case-by-case basis across all forms that are immaterial to this proposed rule. Accordingly, not all individuals pay the fee. When the opportunity costs of time for filing Form I765 $101.27 and $206.44, respectively are added to the opportunity costs of time and travel for biometrics submissions $90.79 and 172.05, the total opportunity cost of time to file Form I765 and submitting biometrics are $192.07 and $378.49, respectively. For those who pay the biometrics service fee, the total costs are $277.07 and $463.49, respectively, with a midpoint of $370.28.86 These figures represent the maximum per-person cost savings for those who choose not to file for an EAD.87
Having developed the cost-savings for applicants who do not file for an EAD, we now turn to countervailing factors against the potential decline in Form I
765 volumes. First, applicants will benefit from a timing change relevant to the EAD waiting period as it relates to the filing date of their asylum application that will allow an EAD to be filed earlier than it could be currently.
USCIS allows for an EAD to be filed under 8 CFR 208.7 when an asylum application is pending and certain other conditions are met. Here, an asylum application would be pending when the credible fear determination is served on the individual as opposed to current practice under which the asylum application is lodged in immigration court. This change in timing could allow some EADs to be approved earlier for those who file for an EAD with a pending asylum application. In this Opportunity cost of time, average wage $144.05 +
travel cost $28 = $172.05.
86 Calculations: $192.07 + biometrics services fee $85 = $277.07; $378.49 + biometrics services fee $85 = $463.49. While we have the overall count for biometrics for the period from October 1, 2020
through May 1, 2021, we do not know how many biometrics service fees were collected with these biometrics submissions; the fee data are retained by the USCIS Office of the Chief Financial Officer OCFO, but the Form I765 fee payments are not captured by eligibility class.
87 There is a scenario that the Departments account for, though it is not likely to occur often.
Currently, an asylum applicant might file for an EAD and have the EAD approved prior to the grant of asylum. It is possible that, under this proposed rule, asylum may be approved more expeditiously.
At the time of the asylum grant, the individual will automatically receive a category a5 EAD based on the grant of asylum; if they did file for an EAD, technically the filing costs associated with the EAD
would be accounted for as sunk costs, since the c8 EAD does not actually provide any benefit over the a5 EAD. This would only apply if the proposed rule itself was responsible for the more expeditious asylum grant, and again, we only account for this possibility since it cannot be ruled out.

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