The Department of Homeland Security (DHS) has issued an interim final rule that would significantly change the affirmative asylum process by allowing U.S. Citizenship and Immigration Services (USCIS) to refer certain asylum applications to immigration court without first conducting an asylum interview. The rule is scheduled for publication in the Federal Register on July 28, 2026, and takes effect immediately upon publication.
The new rule, titled Affirmative Asylum Referrals Without Interview, marks a major departure from USCIS’ long-standing practice of interviewing asylum applicants before referring their cases to the Executive Office for Immigration Review (EOIR).
What Is Changing?
Under the new regulation, asylum officers may refer an affirmative asylum application directly to an immigration judge based on the written record and other evidence, without conducting an interview. USCIS would retain the ability to conduct interviews when deemed necessary and would still conduct interviews before granting or denying asylum in applicable cases.
The rule creates a new regulatory provision allowing referrals without interview when USCIS determines that an applicant:
- Is barred from applying for asylum;
- Is barred from receiving asylum;
- Does not merit a grant of asylum as a matter of discretion; or
- Is not eligible for asylum on the merits of the claim.
USCIS also removes regulatory language suggesting asylum applicants have a “right” to an interview and eliminates the requirement that referral notices include a credibility assessment when credibility is not the basis for the referral.
Why DHS Says the Change Is Necessary
DHS cites the growing asylum backlog as the primary justification for the rule.
According to the agency, the affirmative asylum backlog exceeded 1.4 million pending cases by the end of Fiscal Year 2025, with average processing times reaching approximately 7.3 years. DHS argues that continuing to interview every asylum applicant is no longer operationally sustainable.
The agency estimates that:
- Approximately 444,724 pending asylum applications involve one-year filing deadline issues and could potentially be affected by the rule.
- Approximately 132,167 future asylum applicants annually could be referred without interview because of filing bars, mandatory bars, discretionary concerns, or other eligibility issues.
DHS argues that eliminating interviews for certain cases will allow asylum officers to focus their resources on potentially approvable cases and reduce duplicative work that would otherwise be repeated before an immigration judge.
Which Cases May Be Most Affected?
One-Year Filing Deadline Cases
The rule specifically highlights asylum applications filed more than one year after an applicant’s last arrival in the United States.
According to DHS, roughly 77 percent of untimely-filed asylum cases referred to immigration court after interview during recent fiscal years were ultimately referred because the applicant failed to establish an exception to the one-year filing deadline.
Under the new framework, USCIS may determine from the written record that an applicant has not established eligibility for a filing deadline exception and may refer the case without conducting an interview.
Criminal and National Security Cases
The rule also contemplates referrals without interview for applicants who may be subject to mandatory asylum bars related to serious crimes, terrorism concerns, national security issues, or other public safety concerns. DHS argues that such cases are often better suited for adjudication in an adversarial immigration court setting.
Discretionary Referrals
The rule would also allow asylum officers to refer applications based on discretionary considerations without first making a full determination of asylum eligibility. DHS states that there is no statutory requirement requiring officers to complete an eligibility analysis before determining that asylum should be denied as a matter of discretion.
What About Additional Evidence?
USCIS emphasizes that asylum applicants may still submit additional evidence in support of their claims.
The agency may issue Requests for Evidence (RFEs) in appropriate cases, although USCIS states that it will not be required to issue RFEs before referring a case without interview. USCIS is also considering public notices reminding applicants that their written application and supporting evidence may be their primary opportunity to establish eligibility.
The agency intends to revise Form I-589 instructions to clearly state that asylum applications may be adjudicated without interview and that applicants should provide complete and detailed supporting evidence at the time of filing.
Potential Benefits and Concerns
DHS argues that the rule will:
- Improve operational efficiency.
- Reduce the asylum backlog.
- Speed adjudication of potentially meritorious claims.
- Move ineligible applicants into immigration court more quickly.
- Enhance public safety and national security screening.
At the same time, DHS acknowledges that some individuals who might have received asylum through the prior process could instead be referred to immigration court, resulting in longer case resolution times and additional burdens on EOIR. The agency acknowledges that removing interviews could shift some workload from USCIS to immigration courts.
Erickson Insights and Analysis
Erickson Immigration Group will continue monitoring developments and sharing updates as more news is available. Please contact your employer or EIG attorney if you have questions about anything we’re reporting above or if you have case-specific questions.