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Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules sense, the EAD remains the same in duration, but the starting point shifts to an earlier position for asylum applicants who will file for an initial EAD under the c8 category.
DHS would begin to consider for parole on a case-by-case basis all noncitizens who have been referred to USCIS for a credible fear screening under the slightly expanded set of factors provided for in the proposed rule during the relatively short period between being referred to USCIS for a credible fear screening interview and the issuance of a credible fear determination. A parole grant does not constitute work authorization, however, and currently there are two Form I765
classes, a5, Granted Asylum Sec.
208, and a10, Granted Withholding of Removal/243 H, that could apply to applicants filing for asylum pursuant to the parole process under this proposed rule. In the past, some parolees under these categories have been able to obtain EADs sooner than they would if they were explicitly subject to the filing clock that applies to a pending Form I589 application.
Given the two changes discussed above related to the EAD filingsi the change in timing under when an EAD
can be filed; and ii the somewhat expanded set of circumstances under which certain credible fear cases may be considered for parolesome applicants may file for an EAD, even under the expectation that their asylum could be granted earlier, if they expect to receive an a5 asylum granted EAD even sooner. In this sense, the potential for more rapid approvals of an EAD claim may be expected to provide a net pecuniary benefit even in light of a more expeditious asylum claim. Coupled with the expectation that some individuals may seek an EAD for the non-pecuniary benefit associated with its documentary value, we cannot determine if these countervailing influences might limit, or even completely absorb, any reductions in EAD filing for credible fear asylum applicants.
Regardless of whether, under the proposed rule, it is the more expeditious asylum or EAD approval that is binding for purposes of work authorization, individuals who enter the labor force earlier are able to earn income earlier.
The assessments of possible impacts rely on the implicit assumption that credible fear asylum seekers who receive employment authorization will enter and be embedded in the U.S. labor force at the time of the proposed rule being effective. This assumption is justifiable for those whose labor force entry was effectuated by the EAD
approval, as opposed to the grant of
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asylum. We believe this assumption is justifiable because applicants would generally not have expended the direct and opportunity costs of applying for an EAD if they did not expect to recoup an economic benefit. We also take the extra step of assuming these entrants to the labor force are employed. It is possible that some applicants who are eventually denied asylum are currently able to obtain work authorizationsapproved while their asylum application was pending. We do not know what the annual or current scale of this population is, but it is an expected consequence of this proposed rule that such individuals would not obtain work authorizations in the future.
The impact is attributable to the difference in days between when asylum would be granted under the proposed rule and the current baseline.
USCIS describes this distributional impact in more detail. Since a typical workweek is 5 days, the total day difference D can be scaled by 0.714
5 days/7 days and then multiplied by the average wage W and the number of hours in a typical work day 8 to obtain the impact, as in the formula: D
0.714 W 8. In terms of each actual workday, the daily distributional impact at the wage bounds are $136.88 $17.11
8 hours and $314.00 $39.25 8
hours, respectively, on a per-person basis, with a midrange average of $225.44.
USCIS cannot expand the per-person per-day quantified impacts to a broader monetized estimate. Foremost, while Table 5 provides filing volumes for the asylum relevant EADs, we cannot determine how many individuals within this population would be affected. In addition, we cannot determine what the average day difference would be for any individual that could be impacted. To quantify the day difference, the Departments would need to simultaneously analyze the current and future interaction between the asylum grant and EAD approvals. Doing so for the current system is conceptually possible with a significant devotion of time and resources, but it is not possible to conduct a similar analysis for future cases without relying on a number of assumptions that may not be tractable.
As a result, we cannot extend the perperson cost in terms of earnings basis to an aggregate monetized cost, even if USCIS knew either the population impacted or the day-difference average because an estimate of the costs would require both data points. The impact accruing to labor earnings developed above has the potential to include both distributional effects which are transfers and indirect benefits to
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employers.88 The distributional impacts would accrue to asylum applicants who enter the U.S. labor force earlier than under current regulations, in the form of increased compensation wages and benefits. A portion of this compensation gain might be transferred to asylum applicants from others that are currently in the U.S. labor force or eligible to work lawfully. Alternatively, employers that need workers in the U.S.
labor market may benefit from those asylum applicants that receive their employment authorization earlier as a result of the proposed rule, gaining productivity and potential profits that the asylum applicants earlier start would provide. Companies may also benefit by not incurring opportunity costs associated with the next-best alternative to the immediate labor the asylum applicant would provide, such as having to pay existing workers to work overtime hours, if in fact it was necessary or they were requested to work overtime.
We do not know what this next-best alternative may be for those companies.
As a result, the Departments do not know the portion of overall impacts of this proposed rule that are transfers or benefits, but the Departments estimate the maximum monetized impact of this proposed rule in terms of a daily, perperson basis compensation. The extent to which the portion of impacts would accrue to benefits or transfers is difficult to discern and would depend on multiple labor market factors. However, we think it is reasonable to posit that the portion of impacts attributable to transfers would mainly be benefits, for the following reason: If there are both workers who obtain employment authorization under this rule and other workers who are available for a specific position, an employer would be expected to consider any two candidates to be substitutable to a high degree.
There is an important caveat, however.
There could be costs involved in hiring asylum seekers that are not captured in this discussion. As the U.S. economy recovers from the effects of the COVID
19 pandemic, there may be structural changes to the general labor market and to specific job positions that could impact the next-best alternatives that employers face. The Departments cannot speculate on how such changes in relation to the earlier labor market entry of some asylum applicants could 88 Transfer payments are monetary payments from one group to another that do not affect total resources available to society. See OMB, Circular A4 at 14, 38 Sept. 17, 2003, https
www.whitehouse.gov/sites/whitehouse.gov/files/
omb/circulars/A4/a-4.pdf further discussion of transfer payments and distributional effects.

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