A Department of Homeland Security rule that lets USCIS send affirmative asylum applications to immigration court without ever interviewing the applicant returned to the Federal Register on August 31, 2026, in a correction that republished the rule cost and benefit table. The correction, published at 91 FR 55735, is the only correction to the original interim final rule, and it puts DHS own accounting of who wins and who loses back on the public record with four weeks left to comment.
The underlying rule, Affirmative Asylum Referrals Without Interview (RIN 1615-AD18, CIS No. 2851-26, DHS Docket No. USCIS-2026-0199), was published July 28, 2026 at 91 FR 47101 and took effect the same day as an interim final rule. Written comments are due on or before September 28, 2026 — the rule is already operating while the comment window runs.
What changed. DHS amended 8 CFR part 208 to let an asylum officer refer a Form I-589 to the Justice Department Executive Office for Immigration Review based on the record and other relevant evidence, without conducting an interview. Reporting on the rule indicates referral is available where an applicant is barred by the one-year filing deadline, is barred from a grant of asylum, does not merit a grant as a matter of discretion, or is not eligible on the merits. DHS also removed the requirement that the letter explaining the basis for a referral include an assessment of the applicant credibility, and struck regulatory language stating that an officer would review the application in an interview and give the applicant the opportunity to present relevant information.
DHS states that USCIS still offers an interview before a grant or denial of asylum. The practical shift is that a referral to immigration court is no longer preceded by one.
DHS own table concedes the cost. In the corrected Table 3, the agency lists benefits to applicants including reduced wait times, faster case resolution, earlier clarity, faster access to long-term protection and family reunification, better preservation of evidence, and earlier work authorization for those who are approvable. Under estimated costs, DHS writes of the possibility of increased wait times and slower case resolution for some people who, under the previous process, would have had asylum granted by USCIS. That is the agency acknowledging that a subset of applicants who would have won their case in the asylum office will instead be routed into a court backlog.
What to do about it. For anyone with a pending affirmative I-589, the change means the completeness of the written record now carries more weight than it did, because the record may be the only thing an officer sees before a referral. And because this is an interim final rule with an open comment period, the docket is live: comments can be filed at regulations.gov under DHS Docket No. USCIS-2026-0199 through September 28, 2026.
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Source: Federal Register (91 FR 55735 correction to 91 FR 47101)