The BIA was meant to be the “Supreme Court of immigration,” reviewing decisions by Immigration Judges and USCIS, interpreting the law, and setting precedents. It never quite worked out that way, as the Board has always been overwhelmed, understaffed, and has consistently failed to issue sufficient guidance to the nation’s Immigration Courts. But for all its flaws, the Board offered a modicum of hope that incorrect decisions could be corrected on appeal.
Now, however, new rules will change the way the Board of Immigration Appeals does business. These rules are meant to make the BIA into a rubber stamp for IJ decisions and will almost entirely eliminate due process for non-citizens at the administrative appellate level.
The need for changes at the Board is not in dispute. Between FY2015 and the end of FY2025 (September 30, 2025), the number of cases pending before the Board has increased from 37,285 to 202,946. In my experience, a typical appeal takes three to five years or longer. Various reforms over the years have done little to increase efficiency, and it has long been clear that something more radical needs to be done.
Unfortunately, the new rule is not what we were hoping for. Instead of improving efficiency and preserving due process of law, it eviscerates appellate review in order to quickly deny appeals en masse.
The most important change relates to how appeals will be decided. According to the rule, the “Board cannot—and does not need to—adjudicate every case on the merits.” Instead, “the default will be summary dismissal unless a majority of current Board members vote to consider the appeal on the merits.” These dismissals “will occur quickly—within 15 days of filing the appeal.”
What this means is that when a non-citizen appeals a decision in Immigration Court, the appeal will automatically be denied within 15 days unless a majority of BIA judges decides to review the case. There are currently 19 permanent and temporary BIA judges, and so 10 would need to agree to review the case; otherwise, the appeal will be dismissed. How this will work in practice, I have no idea. In FY2025, the BIA received an average of 8,300 appeals each month. They have a staff to assist them, but it seems impossible that the Board will sift through all these cases to find the ones worth adjudicating. I expect that in practice, many worthy appeals will never receive a fair review.
The new rule anticipates that after their appeal is denied, non-citizens will “seek Federal court review,” meaning they will file a petition for review with a federal appeals court. In this way, the new rule shifts the burden of reviewing Immigration Judge decisions from the BIA to the federal appellate courts. Way back in 2004, after a prior BIA reform designed to “increase the efficiency of immigration appeals and to reduce the backlog of pending immigration cases,” the federal courts were inundated with immigration cases. A committee of the New York Bar Association studied the problem, and found that “the BIA has ceased in practice to play the administrative appellate role which is its reason for existence…. The present dysfunctional and inefficient system wastes taxpayer money and unfairly imposes on the [federal appeals courts] almost the entire burden of assuring that the statutory rights of aliens, and the interests of all citizens in an effective immigration system, are vindicated.” Seems prescient, no?
To get a substantive review of the case in federal court will be prohibitively expensive for many people. The fee for an appeal to the BIA is $1,030, which buys you the privilege of having your appeal summarily dismissed in 15 days. There is a fee waiver, though these seem difficult to get (for more information, check out this helpful guide). Then there is the fee for federal court, which is $600 (a fee waiver may be possible). In addition, there are attorney’s fees, and these tend to be expensive, especially for cases in federal court, which are a lot of work.
Aside from destroying appellate review for nearly all cases, the new rule also imposes restrictions on the time frame to appeal. The rule changes the “deadline for filing an appeal with the Board from 30 to 10 days, except for cases involving certain asylum applications.” Asylum cases that are denied on the merits can still be appealed in 30 days, but asylum cases that are denied due to the one-year filing deadline, a safe third country agreement, or based on a previous asylum denial must be appealed in 10 days. Because this is confusing, it is safest to file any appeal within 10 days of the judge’s decision.
The new rule also “standardizes the Board’s briefing schedule… to require simultaneous briefing within 20 days of the Board setting the schedule in all cases not summarily dismissed, with no reply briefs and limited extensions.” Of course, the vast majority of cases will be denied without a brief, but for those few deemed important enough to review, the BIA is only allowing 20 days for the brief. Given that these cases will likely be complex (why else would the Board have deigned to review them?), and given that lawyers have busy schedules, 20 days is insufficient time for lawyers to do their best work.
These “hurry up” deadlines seem designed to impede non-citizens from exercising their appeal rights. The previous time frame for non-citizens to appeal their case and file a brief was only a fraction of the overall delay at the BIA, and it’s hard not to conclude that these new deadlines exist to punish non-citizens while doing little to improve efficiency.
The only positive news here is that these changes “apply only prospectively and not to appeals pending when the rule becomes effective” on March 9, 2026. So cases filed prior to that date will not be subject to summary dismissal.
However, for those appeals filed after the rule goes into effect, BIA “review” will amount to little more than an expensive charade. Sadly, the “Supreme Court of immigration” has become a pale imitation of what it should be, and we will need to look to the federal courts for any hope of Justice.
An applicant for asylum is not entitled to employment authorization except as may be provided by regulation in the discretion of the Attorney General.
I mean…the law basically says that an asylum seeker is not entitled to EAD…and the discretion of AG doesn’t have to be reasonable…at least not in the statutes..
So, I don’t see how likely the challenge will ultimately prevail in a textualist Supreme Court…
And … even tho I am obviously for asylum seekers, it appears that many asylum seekers are taking advantage of the backlog for the purpose of EAD…it is a magnet of …frivolous filing…
So I feel like the LIFO and EAD backlog pause have some merit…I feel I have to admit that…
Is there anyway that you can think of …that is better than the admin…that will
Deter frivolous filing but also will not harm non-frivolous applicants ?
I feel FILO and EAD backlog pause will discourage some frivolous filing. That’s my opinion
People are entitled to seek asylum under the law, and so if blocking them from an EAD effectively blocks them from seeking asylum, there may be a basis to challenge a rule that prevents people from obtaining a work permit. Take care, Jason
Hi Jason,
Last year i got real id thru asylum granted by IJ and i just provided I-94 and unrestricted social security card and then two proof of address and expiration is 12/2029 on my reall id today i received this email that i need to return my real id and get the new one with correct documents i am so confused why is that happening??
This letter is to notify you that the Department of Motor Vehicles (DMV) recently reviewed your driver record and the documents that you submitted when you applied for your Driver’s License (DL). Based on this review, the DMV determined that your REAL ID driver’s license is not consistent with federal law, which requires that the expiration date of a REAL ID driver’s license must be on or before the expiration date of your legal presence documents given to the DMV. According to our records, we require that you provide updated legal presence documents to update your REAL ID driver’s license or apply for a non-REAL ID driver’s license.
And mentioned the one i have it will be revoked on 03/26/2026 so what documents should i provide then???
I think you will need to contact the DMV, but their message does not make sense. Asylum is a permanent status and does not expire, and so you should be eligible for a Real ID document the same as a person with a green card or a US citizen. Maybe get some evidence about asylum, such as the approval letter and maybe an explanation from the USCIS website to show that asylum is a permanent status with no expiration date. Hopefully, that would be enough to satisfy their request. Take care, Jason
Three questions:
First, I asked some lawyers regarding the 60 days period after TPS is cancelled, and some say that the EAD is invalid and some say it is valid. Non-specialist folks don’t know who to follow. So what is the bottom line here? And why there is a confusion in the first place? If the EAD card ends in March, but then the 60 periods allow grace leeway until May, can one work in March and April? Is the EAD card valid even after the expiration date, during the 60 day period? And what evidence should one provide to their employer who wants evidence that an expired EAD card is still valid?
Second, we know that when a judge block the TPS termination and EAD expiration through an “order and stay” (freeze) then the TPS and EAD remain valid until the entire case is fully adjudicated in court. What evidence do we have for this conclusion? There are folks who say that they go by the TPS expiration date on the document, the EAD expiration date on the card, so how do we show them with evidence that it is otherwise?
Third, this is a question about EB 2 NIW. If the date is current for a particular country, it means that they can apply for the adjustment of status along with the petition, simultaneously, which provides the applicant with an authorized stay, until the case is fully adjudicated, but they say that applying for the adjustment of status (I-485) signals an immigrant intent, which might complicate a non-immigrant visa, is that a valid risk analysis? At this point in time, with holds all around, do you think it is better for someone to apply for the EB 2 NIW petition along with the adjustment of status (I-485), so that they can accrue the benefit of authorized stay? Or do you think that the accrued risk of potentially being barred from an non-immigrant F-1 visa outweighs the benefit. Keep in mind that the applicant has the benefit of authorized stay through an affirmative pending asylum.
Thanks for your service!
1 – I have never seen information about that from a government source, and so I do not know. I suspect that the EAD is invalid on the last date listed on the EAD itself, unless a court issues an order extending TPS. 2 – In that case, USCIS should post something on that country’s TPS page, and you can also get a copy of the court order explaining that TPS (and presumably the EAD) is extended. 3 – A person can only apply for a Green Card (I-485) based on EB2/NIW if they are in lawful non-immigrant status in the US. That could include TPS, but would not generally include asylum pending status (though there is a possible exception under INA 245(k) and Matter of L-K-, a BIA case). If a person has valid F-1 status, they can apply to adjust status, and I have never heard of an example like that where the person was accused of violating their F-1 status by having an immigration intent at the time of entry. Take care, Jason
Hi, i got my CDL in January 2022 and been driving since. I own my trucking company but recently through new FMCSA rule they downgraded all non domiciled CDL and they will only allow US citizens or green card holders
I have ayslum which was approved in july 2025 and i am still waiting to apply for my green card. What should i do in this situation? I am very stressed since CDL was my bread and butter now i am jobless. My company is losing a lot of money and business.
You are eligible to apply for your green card now, as you no longer have to wait 1 year after asylum is granted. I wrote about that on February 6, 2023. So you can apply now and ask to expedite. However, USCIS cannot actually issue you the GC until you have 1 year in the US after asylum was granted, and so the soonest they could issue the GC is July 2026 (assuming you have not left the country since you received asylum). So maybe the best bet is to file now and then in July, try to expedite. I wrote about expediting in general on January 29, 2020, and one basis to expedite is financial hardship (also, green cards for people from “banned” countries are on hold, and so if you are from one of those countries, USCIS cannot issue the GC until the hold ends). In the short term, I am not sure what you can do. Is there an appeal process for the CDL? If so, maybe there is a way to keep the license while you appeal. There should be commercial driving organizations that assist drivers, and maybe they could assist? Take care, Jason
Hi Jason, have you seen the https://public-inspection.federalregister.gov/2026-03595.pdf text, I don’t understand if the rule to pause EADs until USCIS processes cases within 180 days only applies to initial EADs or renewals as well? Some of the news reported as to all, some state only initial, if you’ve seen the rule – could you please clarify? I’ll have to renew my license later this year so now I’m very scared and worried.
I will try to post something on this new rule soon, but as I read it, it only applies to first-time EADs under category c-8 (asylum pending). So if you already have an EAD, it has no effect and you can renew. Keep in mind that USCIS previously eliminated the automatic extension for EAD renewals, and that new cards will only be valid for 1.5 years (instead of 5), and so once you get the new EAD, it is probably best to file to renew. Take care, Jason
I mean 1.5 years without extension….
A lot of employers will not want to hire such people…
Hey Jason,
My Friend got detained by ICE on his routine checkin, He owns a restaurant in Chicago and since his arrest the Restaurant is closed. He took a lot of money from the banks to start the business (he is in Dept around $200k) as of now he is unable to pay back to the banks as he is in detention
My question is if he gets deported what will happen to the business and his dept ?
Regards
John
Good question – this is not something I know about, but I do not know how the bank will collect the money if he is deported and the business is closed. It would be a little surprising to me if the bank made a loan without some collateral, which it could collect if he fails to pay the debt, but I do not know. Take care, Jason
When work authorization ends, during the 60 days period for TPS, can folks still work with the gig economy (Lyft or Uber)? It usually connected with social security. What are the consequences for working when not supposed to work?
When having a pending asylum case, and still didn’t receive the EAD card, can one still works? When one’s EAD is expired because TPS is expired, can they still work? Practically, they can but what are the consequences for working when one doesn’t have a valid current EAD? Sometimes someone might be working with a non-profit organization who only requires social security, and the gig economy only asks for social security, and don’t ask for EAD. As a result, what are the consequences of working when EAD is either expired or simply in limbo (such as the TPS 60 days period)?
Whether you can work legally without an EAD (or the automatic extension to the EAD) depends on your status. Asylees and refugees can work without a valid EAD, but asylum seekers cannot. The consequences for working illegally vary, but generally, this would not block you from receiving asylum or getting a GC based on marriage to a US citizen. It would likely block you from getting a GC based on employment. I think if this is a concern, you would need to talk to a lawyer about the specifics of your case and the types of any future applications that you might file. Take care, Jason
As you advised, I consulted with a lawyer and they said that the EAD follows the mind of TPS, meaning that during the 60 days then both TPS and EAD are still valid. So too if a judge blocked the TPS cancellation, which is likely to occur given the precedence of the Syrian case, then also EAD follows TPS. Does this strike you as a sound lawyerly advice? Please advice and thank you for your service, Jason!
I agree that as long as TPS is valid the EAD is valid, and so if a judge blocks the end of TPS, that should extend the EAD. However, I would want to read the judge’s order (if and when it is issued) just to be sure. Take care, Jason
Hi Jason,
Is there any news about EAD renewals ? I am currently holding the EAD receipt, which may get expired in a couple of months. This is a real issue because my job is very strict about these things which I believe they should be because they are very big corporation. It seems we are getting close day by day to loose our jobs and end up with really tough and not manageable situations. I am originally from Afghanistan, for us, we are almost lost all our options. This issue continues to get worse and worse and continues to affect us a lot more than ever.
It is extremely bad, and USCIS is deliberately doing this to harm asylum seekers and others. The “security” excuse is complete nonsense. If you filed prior to the change in the rule and have your receipt, that should automatically extend the EAD for 540 days, and you can rely on that for some protection. Otherwise, we just don’t know how things will proceed for people from “banned” countries. I am not sure whether there are any lawsuits trying to challenge this ban for EADs. That does seem like a possibility, and hopefully that is happening. If not, we will just have to wait for the Administration to make whatever changes they plan to make to the “security” process and then hope that the hold ends. Unfortunately, the Administration has shown itself willing to harm many vulnerable people and they certainly cannot be counted on to do the right thing. As such, you might have to explore other options. One idea I have been thinking about is for non-citizens to form a company and then the company would contract with the employer. That way, the non-citizen is not earning income (only the company is). I expect this will not work for most employer-employee relationships, and I am still looking into it and am not sure whether it can be done legally, but it is one idea. Take care, Jason
Refugees must either get a green card within a year, or “present themselves to the agency” to avoid detention, according to a Feb. 18 memo from the U.S. Citizenship and Immigration Services and Immigration and Customs Enforcement.
What would a refugee from a banned country do? Does the memo include a person who was granted asylum? Should people file for an AOS earlier than a year now since detention is in the horizon? Would there be a break from bad news?
Thank you so much for your efforts, Jason!
The memo is for refugees, and not for people granted asylum. It is a little hard to understand this memo. It seems to say that by filing the form to adjust status (form I-485) and attending any interview, the refugee has fulfilled the obligation to present themselves to USCIS. However, the memo also seems to say that if the person does not yet have a GC after one year in the US with refugee status, they may be detained (and since processing the I-485 takes a year or longer, especially for people from “banned” countries, very few refugees will have a GC after one year in the US). My best guess at this point is that refugees should file the form I-485 as soon as they are eligible. I have heard about a few examples where refugees had pending I-485 applications and were detained, but were then released within a few days after USCIS approved their cases. We will have to see how this develops in practice, but my hope is that by filing the I-485, refugees will generally be protected from detention (the hope is that courts will not allow people who filed the I-485 to be detained). Take care, Jason
Hey Jason. If the case gets to the federal court, any idea how long it takes in average to be resolved?
Also, if everything is done timely, the EAD will still be valid while the appeal is pending in Federal court, correct?
Thanks in advance
Sorry, I am not sure I understand the question. Is this about the proposed rule to block EADs? If so, I think we will need to see the rule and whether it affects people who have work permits or only new asylum applicants who do not yet have EADs. Also, if it is blocked by a court, we will need to see what the decision blocking it says. In short, it is too soon to know much about exactly how the new EAD rule will affect people. Take care, Jason
Thank you for your response. I actually means lets say If, for any reason, the Immigration Judge denies the asylum application and the case goes to the Board of Immigration Appeals, and they refuse to review it, how long does it typically take for the Federal Court to review the case and issue a decision? Thank you for the reply!
If a federal court denies a case, that usually only takes some months – it varies by court, but maybe 4 to 6 months is a reasonable guess, at least in the courts where I have done cases. If the court wants to hold oral argument and issue a decision on the case, that can take a lot longer. Of course, the new rule may cause many more cases to go to federal court, and that will likely slow down the process. Take care, Jason
Hi Jason, have you seen the newly proposed rule https://news.bloomberglaw.com/daily-labor-report/dhs-plans-to-restrict-work-authorization-for-asylum-seekers – which will block all EADs because average asylum processing is way beyond 180 days, do you think it’ll be blocked by courts? So far the EAD extension pause hasn’t been blocked, and no one receives extension.
We will have to see how this looks, but it is obviously bad news. I do think there is a chance it could be blocked by the courts, but this is the Administration’s effort to prevent asylum seekers from exercising their right to seek protection in the US. It is underhanded and vile, and will force people to work without authorization, which will make them vulnerable to exploitation. Take care, Jason
Because I remember you mentioned that the executive branch has a lot of discretion regarding immigration laws…
And pending asylum seekers’ EAD sounds like a discretionary benefit…
Can it really be blocked ? I am worried
I think it will likely be blocked initially, but whether that will hold up on appeal, I am less confident. Take care, Jason
Thanks for your professional opinion. It will help me plan accordingly.
I have a question about TPS. TPS for Yemen was terminated and it sets to expire on March 3, 2026. But it was not published in the Federal Register. Also some Yemeni folks are filing a lawsuit. So hopefully a judge will block and put in a stay. During this whole period, is the work authorization (EAD) still valid? Or is the work authorization cancelled in March 3, 2026—even before the 60 days cancellation on the Federal Register, or even when a judge blocks the order? I understand the rules and regulations around TPS, but what about EAD card? Does it follow the TPS or does it have its own mind?
The EAD card should have an end date on it and unless it is subject to an automatic extension, it becomes invalid on that date. For Yemen, there was an automatic extension until March 3, 2026. If a lawsuit blocks TPS from ending, the EAD may still be valid if the lawsuit also blocks DHS from ending work eligibility. Courts have prevented the Administration from ending TPS for several other countries, and these cases are largely still being fought about in court. We will have to wait to see if there is a court order stopping DHS from ending TPS. As you mention, one point that is confusing is the 60 day notice period for the Federal Register. Arguably, TPS and EAD validity will not actually end until 60 days after the notice is published in the Federal Register, which will be after March 3 (and may not be until May or later). I think we will have to see what that notice says, as I am not sure how it will affect work eligibility during those 60 days. Take care, Jason
At least limit the damage
I certainly hope Democrats take control of the House and maybe the Senate. They can do a lot to mitigate the damage, but I don’t think they would have the specific power to fix the BIA appeal issue discussed above. Take care, Jason
Hi Jason, thank you for sharing the news, do you think if Democrats take over House and Senate in November this rule can be overturned?
On a bit positie note – I saw a couple of posts on reddit where asylum seekers were sharing that a decision was issued for their affirmative asylum cases(for interviews that happened before the pause), have you heard any of similar situations? Does it mean the pause to asylum pending decisions is being lifted?
I am not optimistic that a Democratic takeover in Congress would solve this problem. Maybe they could pressure the Administration to change by withholding funds. I guess they could also pass a law to reform the immigration court system, but that seems unlikely (plus, the President would need to sign the law). In terms of asylum office decisions, so far I have only heard about a couple denied cases from the Los Angeles office. I was at the Virginia asylum office yesterday and the officer did not have any info about when the pause might end, though when I was there previously and talked to some officers, they thought it would probably end after a few months. Take care, Jason
Hello Jason,
Do you have any information about the denied case at the LA office? Was the decision issued after a mandamus lawsuit was filed?
Also, do you think filing a mandamus lawsuit for pending decision cases is worth pursuing in the current situation?
I heard about it second hand, so I don’t have much info. I do not know if a mandamus was filed. The lawyers in my office who do mandamus seem to think it is not a good idea while the “hold” continues. It would be possible to try to challenge the hold and state that it is illegal, but that is a very involved lawsuit (under the Administrative Procedures Act) and is probably more than most people would be able to take on. A mandamus may make sense for some people during the hold. For example, apparently in LA, there is a one-year wait for mandamus interviews, and so someone could presumably file the mandamus now and hopefully by the time the interview comes up, the hold will be over. That may not work in other offices, where there is not a long wait for mandamus interviews. Take care, Jason