By: Matt Emma
A recent change to the asylum process is adding another layer of uncertainty for employers already trying to keep pace with a rapidly changing immigration environment.
U.S. Citizenship and Immigration Services has changed how certain affirmative asylum applications can move through the immigration system, allowing some cases to be referred directly to immigration court without first going through the traditional USCIS asylum interview. While the procedural change is aimed primarily at the asylum system and its significant backlog, immigration experts say employers should understand how developments like this can affect their workforce.
For human resources departments, however, the first lesson may be what not to do.
“One of the biggest misconceptions I hear from employers is that every immigration announcement requires immediate action,” said Flavia Santos Lloyd, founder and managing attorney of Santos Lloyd Law Firm. “In many cases, it doesn’t. The first question HR should ask is whether the development actually changes the employer’s legal obligations or an employee’s current authorization to work.”
That distinction is particularly important with the new asylum procedure.
What the Rule Means for Employers
The ability to refer certain asylum cases directly to immigration court changes where an individual’s immigration case may be heard, but it does not automatically determine whether that individual is authorized to work.
For employers, employment eligibility remains tied to the documentation an employee is legally permitted to present through the Form I-9 process.
“A referral to immigration court does not automatically mean an employee loses work authorization,” Lloyd said. “HR should continue following the normal Form I-9 process, rely on valid documentation and avoid making assumptions about an employee’s ability to work simply because the status or location of an immigration case has changed.”
That can be difficult in an environment where immigration developments frequently generate significant news coverage. Employees may see a headline about asylum, Temporary Protected Status, deportation proceedings or another immigration program and immediately worry that their employment could be affected.
HR departments may receive those questions just as quickly.
Flavia Santos Lloyd said employers should resist making employment decisions based on broad immigration developments without first determining whether those developments apply to a particular employee or change existing employment verification requirements.
Work Authorization Remains the Critical Question
Employees with pending asylum applications may obtain Employment Authorization Documents if they meet applicable eligibility requirements. Employers are responsible for verifying employment authorization according to federal requirements, but they generally are not responsible for evaluating the merits of an employee’s underlying immigration case.
That division is important.
“Employers should be focused on whether an employee has valid work authorization, not trying to determine whether that person is likely to win or lose an asylum case,” Lloyd said. “Those are very different questions.”
For HR teams, that means continuing to monitor employment authorization expiration dates when required and conducting reverification when federal law requires it.
It does not mean automatically reverifying an employee because an immigration category has appeared in the news.
“Employers can create problems when they start asking certain employees for additional documentation because they are nervous about something they read,” Lloyd said. “Consistency is one of the best compliance tools an HR department has.”
Federal anti-discrimination protections can come into play when employers request more or different documents than required or treat workers differently because of citizenship, immigration status or national origin.
The Danger of Managing Immigration Compliance by Headline
The asylum rule arrives during a particularly complicated period for employers.
Immigration policies are being changed through agency actions, challenged through litigation and, in some instances, modified following court decisions again. For businesses with foreign national employees or workers who hold temporary forms of employment authorization, keeping track of those developments can become increasingly difficult.
According to Lloyd, one of the most common questions employers ask following a major immigration development is simple: Do we need to do anything right now?
“In many cases, the answer is no,” she said. “A court ruling or policy announcement may be extremely important to the people directly affected, but that does not necessarily mean an employer has a new compliance obligation that day.”
Instead, HR leaders should verify developments through official government guidance and qualified immigration counsel before changing established procedures.
That is especially important when court cases are involved. A ruling may apply only to certain individuals, jurisdictions, or programs. An injunction may temporarily stop a policy from taking effect, while an appeal can change the situation again.
Reacting too quickly can create a different kind of legal risk.
“The biggest mistake is making decisions based on headlines instead of official guidance,” Lloyd said. “Immigration law can change quickly, but employers still have to follow the rules that are actually in effect.”
Supporting Employees Without Providing Legal Advice
Compliance is only one part of the challenge.
Immigration uncertainty can also become a workforce issue. Employees concerned about their ability to remain in the United States may experience significant anxiety even when their employment authorization has not changed.
Employers do not need to become immigration advisers, Lloyd said, but they can establish a clear process for employees seeking assistance.
“HR should never try to provide individualized immigration advice unless someone is qualified to do that,” she said. “What employers can do is make sure employees know where to bring questions and, when appropriate, direct them to experienced immigration counsel.”
Managers should also understand where their role ends. Rather than independently questioning employees about immigration status or documents, immigration-related employment questions should generally be routed through the organization’s designated HR or compliance professionals.
For larger employers, establishing those procedures before an issue arises can prevent inconsistent responses across departments or locations.
What HR Leaders Can Do Now
The new asylum procedure does not necessarily require employers to rewrite their policies, but Lloyd believes it provides a useful reason to review them.
HR departments can examine whether Form I-9 procedures are being applied consistently, whether employment authorization expiration dates are being tracked appropriately and whether staff members responsible for verification understand when reverification is required.
Organizations should also know who will handle more complicated immigration questions when they arise.
“Have the plan in place before you need it,” Lloyd said. “Know who within the organization is responsible for immigration compliance, know when outside counsel should be contacted, and make sure managers understand that they should not be making immigration decisions independently.”
Communication can be equally important. Employers may not be able to tell workers what will happen with a particular immigration program or court case, but they can explain company procedures and avoid allowing rumors to drive workplace anxiety.
Preparing for More Immigration Changes
For business leaders, the larger message extends well beyond the latest asylum rule.
Lloyd expects employers to continue facing changes involving employment authorization, humanitarian immigration programs, employment-based visas, processing times, and worksite enforcement over the coming months.
Each development may affect employers differently, making it increasingly important for businesses to have systems that can adapt without overreacting.
“I don’t think employers should expect immigration policy to become static anytime soon,” Lloyd said. “The organizations that are going to be in the strongest position are the ones that review their compliance practices regularly, communicate clearly and know where to turn when something changes.”
For HR leaders, that may ultimately be the most practical response to an immigration environment that can change faster than internal company policies.
Employers cannot predict every court ruling, agency announcement, or policy shift. They can, however, establish consistent employment verification procedures, train the people responsible for administering them, and create a reliable process for responding when immigration issues affect their workforce.
“Being proactive is far easier than trying to fix a problem after the fact,” Lloyd said. “Good immigration compliance isn’t about reacting to every headline. It’s about having sound practices in place so that when something does change, you know how to respond.”
Disclaimer: This article is for general informational purposes only and does not constitute legal advice. Immigration laws, policies, and procedures are subject to change, and their application may vary depending on individual circumstances. Employers and individuals should consult qualified immigration or employment counsel regarding specific legal questions.
