USCIS Can Now Skip Asylum Interviews Under New Rule

Under a new interim final rule from the Department of Homeland Security, USCIS may now refer certain affirmative asylum applications directly to immigration court without first interviewing the applicant. Affirmative asylum applications are filed by people who are not already in removal proceedings.

Previously, in most cases, USCIS interviewed affirmative asylum applicants before deciding whether to grant asylum or, if the applicant did not qualify, refer the case to an immigration judge for a new review. Under the new rule, however, USCIS officers may bypass that interview and refer certain cases directly to immigration court.

The rule took effect the moment it published, but it is not fully locked in yet. USCIS is accepting public comments for 60 days after publication and plans to issue a final rule after reviewing that feedback.

Who does this rule actually affect?

The new rule lets USCIS officers forward affirmative asylum cases to an immigration court without the need of an in-person interview. Before, adjudicators could only refer someone to court if they could not approve the case. In practice, Manifest immigration attorney Ana Gabriela Urizar says that immigration court functions very differently than a USCIS asylum interview.

“Before an immigration judge, the government is represented by a DHS attorney whose role is to challenge the claim, evidence, and credibility of the applicant,” she says. “Skipping the USCIS interview means some asylum seekers may lose the opportunity to present their case in the less adversarial administrative process before entering removal proceedings.”

In addition, the interim final rule:

• Lets an asylum officer refer a case to immigration court without an interview if the file already shows the applicant missed the one-year filing deadline to apply for asylum.
• Allows adjudicators to skip the interview if the file shows the applicant is barred from a grant of asylum or likely would not receive a discretionary grant.
• Allows an asylum officer to skip the interview if the file shows the applicant does not qualify for asylum on the merits of the claim.
• Removes regulatory language that describes an interview as something applicants have a right to before their case moves to court.
• Drops the requirement that referral letters include an assessment of the applicant's credibility.

How many asylum cases could this affect?

This rule only applies to future and pending affirmative asylum applications, not people already fighting removal in immigration court.

DHS estimates that approximately 132,167 future affirmative asylum applicants a year could be referred without an interview once the rule takes effect. The agency also claims that up to 444,724 existing cases could potentially be affected — 31 percent of the 1,434,145 affirmative asylum applications backlog.

Why is USCIS making this change now?

DHS says the old process wasted resources by reviewing some applications twice: once at the asylum office, then again in front of an immigration judge. The agency also states the change will help USCIS process asylum cases faster, as applications involving a possible danger to public safety or national security would be forwarded to an immigration judge sooner.

What should asylum seekers do next?

Manifest immigration attorney Urizar says for those who already had their affirmative asylum interview or have one scheduled, nothing changes. “Your appointment won't get canceled by this rule,” she says. “However, if you have a pending affirmative asylum case, especially one that touches on the one-year filing deadline or a possible bar to eligibility, you should talk to an immigration attorney about how this rule could apply to you.”