Asylum Interview Interpreter Requirement Modification Due to COVID-19, 16372-16378 [2023-05572]

Agencies

• DEPARTMENT OF HOMELAND SECURITY

[Federal Register Volume 88, Number 52 (Friday, March 17, 2023)]
[Rules and Regulations]
[Pages 16372-16378]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-05572]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 208

[CIS No. 2741-23; DHS Docket No. USCIS-2020-0017]
RIN 1615-AC59


Asylum Interview Interpreter Requirement Modification Due to 
COVID-19

AGENCY: U.S. Citizenship and Immigration Services (USCIS), Department 
of Homeland Security (DHS).

ACTION: Temporary final rule; extension.

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SUMMARY: The Department of Homeland Security (DHS) is extending, for a 
fourth time, the effective date (for 180 days) of its temporary final 
rule that modified certain regulatory requirements to help ensure that 
USCIS may continue with affirmative asylum adjudications during the 
COVID-19 pandemic.

DATES: This temporary final rule is effective from March 16, 2023 
through September 12, 2023. As of March 16, 2023, the expiration date 
of the temporary final rule published at 85 FR 59655 (Sept. 23, 2020), 
which was extended at 86 FR 15072 (Mar. 22, 2021), at 86 FR 51781 
(Sept. 17, 2021), and at 87 FR 14757 (Mar. 16, 2022), is further 
extended from March 16, 2023 through September 12, 2023.

FOR FURTHER INFORMATION CONTACT: Ren[aacute] Cutlip-Mason, Chief, 
Division of Humanitarian Affairs, Office of Policy and Strategy, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
5900 Capital Gateway Drive, Camp Springs, MD 20588-0009; telephone 
(240) 721-3000 (not a toll-free call).
    Individuals with hearing or speech impairments may access the 
telephone numbers above via TTY by calling the toll-free Federal 
Information Relay Service at 1-877-889-5627 (TTY/TDD).

SUPPLEMENTARY INFORMATION:

I. Legal Authority To Issue This Rule and Other Background

A. Legal Authority

    The Secretary of Homeland Security (Secretary) takes this action 
pursuant to his authorities concerning asylum determinations. The 
Homeland Security Act of 2002 (HSA), Public Law 107-296, as amended, 
transferred many functions related to the execution of Federal 
immigration law to the newly created DHS. The HSA amended the 
Immigration and Nationality Act (INA or the Act), charging the 
Secretary ``with the administration and enforcement of this chapter and 
all other laws relating to the immigration and naturalization of 
aliens,'' INA 103(a)(1), 8 U.S.C.

[[Page 16373]]

1103(a)(1), and granting the Secretary the power to take all actions 
``necessary for carrying out'' the immigration laws, including the INA, 
id. 1103(a)(3). The HSA also transferred to DHS responsibility for 
affirmative asylum applications made outside the removal context. HSA 
451(b)(3); 6 U.S.C. 271(b)(3) (providing for the transfer of 
adjudication of asylum and refugee applications from the Commissioner 
of Immigration and Naturalization to the Director of the Bureau of 
Citizenship and Immigration Services, now USCIS). USCIS asylum officers 
determine, in the first instance, whether a noncitizen's \1\ 
affirmative asylum application should be granted. See 8 CFR 208.4(b), 
208.9. Generally, the Department of Justice Executive Office for 
Immigration Review adjudicates asylum applications filed by noncitizens 
who are in removal proceedings. See INA 103(g), 240; 8 U.S.C. 1103(g), 
1229a.
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    \1\ For purposes of the discussion in this preamble, DHS uses 
the term ``noncitizen'' colloquially to be synonymous with the term 
``alien'' as it is used in the INA. See INA 101(a)(3), 8 U.S.C. 
1101(a)(3); Barton v. Barr, 140 S. Ct. 1442, 1446 n.2 (2020) (``This 
opinion uses the term ``noncitizen'' as equivalent to the statutory 
term ``alien.'' See 8 U.S.C. 1101(a)(3)''). DHS also uses the term 
``individuals.''
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B. Legal Framework for Asylum

    Asylum is a discretionary benefit that generally can be granted to 
eligible noncitizens who are physically present or who arrive in the 
United States, irrespective of their status, subject to the 
requirements in section 208 of the INA, 8 U.S.C. 1158, and implementing 
regulations, see 8 CFR parts 208, 1208.
    Section 208(d)(5) of the INA, 8 U.S.C. 1158(d)(5), imposes several 
mandates and procedural requirements for the consideration of asylum 
applications. Congress also specified that the Attorney General and 
Secretary of Homeland Security ``may provide by regulation for any 
other conditions or limitations on the consideration of an application 
for asylum,'' so long as those conditions or limitations are ``not 
inconsistent with this chapter.'' INA 208(d)(5)(B), 8 U.S.C. 
1158(d)(5)(B). Thus, the current statutory framework leaves the 
Attorney General (and, after the HSA, also the Secretary) significant 
discretion to regulate consideration of asylum applications. USCIS 
regulations promulgated under this authority set agency procedures for 
asylum interviews and require that applicants unable to communicate in 
English ``must provide, at no expense to the USCIS, a competent 
interpreter fluent in both English and the applicant's native language 
or any other language in which the applicant is fluent.'' 8 CFR 
208.9(g)(1). This requirement means that all asylum applicants who 
cannot communicate in English must bring an interpreter to their 
interview. However, doing so, as required by the regulation, has posed 
a serious health risk because of the COVID-19 pandemic.
    Accordingly, this temporary final rule extends the rule published 
at 85 FR 59655, for a fourth time, to continue to mitigate the spread 
of COVID-19 by seeking to slow the transmission and spread of the 
disease during asylum interviews before USCIS asylum officers while the 
COVID-19 national emergency and public health emergency (PHE) are still 
in effect. On January 30, 2023, the Administration announced its plan 
to extend the emergency declarations to May 11, 2023, and then end both 
emergencies on that date.\2\ Consistent with that announcement, 
President Biden has extended the COVID-19 national emergency and 
announced that he anticipates terminating it on May 11, 2023.\3\ 
Likewise, the Department of Health and Human Services (HHS) has 
extended the PHE \4\ and stated that it is planning for the PHE to end 
on May 11, 2023.\5\ The fourth extension of this temporary final rule 
provides some additional time following the expiration of the national 
and public health emergencies to allow USCIS to properly operationalize 
the return to the requirement that asylum applicants provide 
interpreters at their asylum interviews while also giving sufficient 
notice to the public of the expiration of this temporary final rule and 
reversion to past practice. To that end, this temporary final rule will 
extend for 180 days the requirement that allows noncitizens to use 
USCIS-provided interpreters during affirmative asylum interviews in 
certain instances. This temporary final rule also provides that, while 
the rule is in effect, if a USCIS interpreter is unavailable, USCIS 
will either reschedule the interview and attribute the interview delay 
to USCIS for the purposes of employment authorization under 8 CFR 
208.7, or USCIS may, in its discretion, allow the applicant to provide 
an interpreter.
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    \2\ Statement of Administration Policy (Jan. 30, 2023), https://www.whitehouse.gov/wp-content/uploads/2023/01/SAP-H.R.-382-H.J.-Res.-7.pdf (last visited Mar. 2, 2023).
    \3\ Notice on the Continuation of the National Emergency 
Concerning the Coronavirus Disease 2019 (COVID-19) Pandemic, 88 FR 
9385 (Feb. 14, 2023).
    \4\ Department of Health and Human Services (HHS), Renewal of 
Determination that a Public Health Emergency Exists (Feb. 9, 2023), 
https://aspr.hhs.gov/legal/PHE/Pages/COVID19-9Feb2023.aspx (last 
visited Feb. 27, 2023).
    \5\ HHS, COVID-19 Public Health Emergency (PHE), https://www.hhs.gov/coronavirus/covid-19-public-health-emergency/ 
(last visited Mar. 2, 2023).
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C. The COVID-19 Pandemic

    On January 31, 2020, the Secretary of Health and Human Services 
declared a public health emergency under section 319 of the Public 
Health Service Act (42 U.S.C. 247d), in response to COVID-19, which is 
caused by SARS-CoV-2.\6\ On March 13, 2020, the President declared a 
National Emergency concerning the COVID-19 pandemic.\7\ As of February 
1, 2023, there have been over 753 million confirmed cases of COVID-19 
identified globally, resulting in more than 6.8 million deaths.\8\ 
Approximately 100,941,827 cases have been identified in the United 
States, with about 287,580 new cases identified during the week of 
January 23, 2023, and approximately 1,097,246 reported deaths due to 
the disease.\9\ A more detailed background discussion of the COVID-19 
pandemic is found in the original temporary final rule, as well as in 
the first and second extensions of the rule, and USCIS incorporates the 
discussions of the pandemic into this extension. See 85 FR 59655 (Sept. 
23, 2020); 86 FR 15072 (Mar. 22, 2021); 86 FR 51781 (Sept. 17, 2021).
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    \6\ Department of Health and Human Services (HHS), Determination 
that a Public Health Emergency Exists (Jan. 31, 2020), https://www.phe.gov/emergency/news/healthactions/phe/Pages/2019-nCoV.aspx 
(last visited Jan. 12, 2023).
    \7\ Proclamation 9994 of March 13, 2020, Declaring a National 
Emergency Concerning the Coronavirus Disease (COVID-19) Outbreak, 85 
FR 15337 (Mar. 18, 2020).
    \8\ WHO Coronavirus (COVID-19) Dashboard (updated Feb. 1 2023), 
https://covid19.who.int/ (last visited Feb. 1, 2023).
    \9\ Id.
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    Since publication of the original temporary final rule, variants of 
the virus that causes COVID-19 have been reported in the United 
States.\10\ Following the first COVID-19 Omicron variant case reported 
in the United States, on December 1, 2021, there was a rapid increase 
in infections and hospitalizations with multiple large clusters of 
outbreaks that peaked in mid-January 2022.\11\ Although vaccines

[[Page 16374]]

are now widely accessible, there is wide disparity in the percentages 
of who have received updated boosters.\12\ Indeed, ongoing research 
demonstrates that while the effectiveness of authorized and approved 
COVID-19 vaccines against death, serious disease, and hospitalization 
remains high, their effectiveness against milder symptomatic disease 
wanes over time, and thus CDC guidance states that eligible individuals 
should receive COVID-19 vaccine booster shots after certain periods of 
time.\13\ CDC reports also show that individuals who are unvaccinated 
have a greater risk of testing positive for COVID-19 and a greater risk 
of dying from COVID-19 than individuals who are fully vaccinated.\14\ 
While vaccines offer protection against variants, Centers for Disease 
Control and Prevention (CDC) data from January 2023 indicated that an 
Omicron subvariant, XBB.1.5, had quickly become a higher percentage of 
total COVID-19 cases in the United States, accounting for 61.3 percent 
of new cases.\15\ This subvariant only accounted for approximately 10 
percent of new cases in early December 2022.\16\ Even with the 
emergence of this new variant, the number of COVID-19 infections and 
hospitalizations in the United States has greatly decreased since the 
peak in mid-January 2022.\17\
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    \10\ Centers for Disease Control and Prevention (CDC), SARS-CoV-
2 Variant Classifications and Definitions (updated Apr. 26, 2022), 
https://www.cdc.gov/coronavirus/2019-ncov/variants/variant-classifications.html (last visited Jan. 12, 2023).
    \11\ CDC, Rapid Increase of Omicron Variant Infections in the 
United States: Management of Healthcare Personnel with SARS-CoV-2 
Infection or Exposure (Dec. 24, 2021), https://emergency.cdc.gov/han/2021/pdf/CDC_HAN_460.pdf (last visited Jan. 12, 2023); CDC, 
Potential Rapid Increase of Omicron Variant Infections in the United 
States (updated Dec. 20, 2021), https://www.cdc.gov/coronavirus/2019-ncov/science/forecasting/mathematical-modeling-outbreak.html 
(last visited Jan. 12, 2023); CDC, COVID Data Tracker--Trends in 
Number of COVID-19 Cases and Deaths in the U.S. Reported to CDC, by 
State/Territory (updated Dec. 28, 2022), https://covid.cdc.gov/covid-data-tracker/#trends_dailycases (last visited Jan. 12, 2023); 
CDC, COVID Data Tracker: New Admissions of Patients with Confirmed 
COVID-19 Per 100,000 Population by Age Group, United States (updated 
Jan. 24, 2023), https://covid.cdc.gov/covid-data-tracker/#new-hospital-admissions (last visited Jan. 25, 2023).
    \12\ CDC, COVID Data Tracker--COVID-19 Vaccinations in the 
United States (updated Jan. 26, 2023), https://covid.cdc.gov/covid-data-tracker/#vaccinations_vacc-total-admin-rate-total (last visited 
Feb. 1, 2023).
    \13\ CDC, Stay Up to Date with Vaccines (updated Jan. 9, 2023), 
https://www.cdc.gov/coronavirus/2019-ncov/vaccines/stay-up-to-date.html (last visited Jan. 12, 2023); FDA, COVID-19 Frequently 
Asked Questions (updated Dec. 8, 2022), https://www.fda.gov/emergency-preparedness-and-response/coronavirus-disease-2019-covid-19/covid-19-frequently-asked-questions (last visited Jan. 12, 2023); 
CDC, Waning 2-Dose and 3-Dose Effectiveness of mRNA Vaccines Against 
COVID-19-Associated Emergency Department and Urgent Care Encounters 
and Hospitalizations Among Adults During Periods of Delta and 
Omicron Variant Predominance--VISION Network, 10 States, August 
2021-January 2022, Feb. 11, 2022, https://www.cdc.gov/mmwr/volumes/71/wr/mm7107e2.htm (last visited: March 8, 2023).
    \14\ CDC, Rate of COVID-19 Cases and Deaths by Vaccination 
Status, https://covid.cdc.gov/covid-data-tracker/#rates-by-vaccine-status (last visited Jan. 12, 2023).
    \15\ CDC, COVID Data Tracker-Variant Proportions (updated Jan. 
28, 2023), https://covid.cdc.gov/covid-data-tracker/#variant-proportions (last visited Feb. 1, 2023); Aliza Rozen, What You Need 
to Know About XBB.1.5, the Latest Omicron Variant, Johns Hopkins 
Bloomberg School of Public Health (Jan. 6, 2023), https://publichealth.jhu.edu/2023/what-you-need-to-know-about-xbb15-the-latest-omicron-variant (last visited Jan. 12, 2023); Early Estimates 
of Bivalent mRNA Booster Dose Vaccine Effectiveness in Preventing 
Symptomatic SARS-CoV-2 Infection Attributable to Omicron BA.5- and 
XBB/XBB.1.5-Related Sublineages Among Immunocompetent Adults--
Increasing Community Access to Testing Program, United States, 
December 2022-January 2023 (updated Feb. 3, 2023), https://www.cdc.gov/mmwr/volumes/72/wr/mm7205e1.htm (last visited: March 6, 
2023).
    \16\ Id.
    \17\ CDC, COVID Data Tracker: New Admissions of Patients with 
Confirmed COVID-19 Per 100,000 Population by Age Group, United 
States (updated Jan. 24, 2023), https://covid.cdc.gov/covid-data-tracker/#new-hospital-admissions (last visited Jan. 25, 2023).
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II. Purpose of This Temporary Final Rule

    USCIS continues its efforts to protect the health and safety of its 
employees and the public by requiring all federal employees, on-site 
contractors, and visitors to follow local USCIS guidance on physical 
distancing and workplace protection consistent with updated Federal 
guidance.\18\
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    \18\ USCIS Response to COVID-19 (updated Oct. 24, 2022), https://www.uscis.gov/about-us/uscis-response-to-covid-19 (last visited 
Jan. 12, 2023).
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    USCIS conducted 32,012 total asylum interviews between September 
23, 2020 and March 7, 2022. While maintaining public safety measures 
pursuant to its response to COVID-19,\19\ USCIS simultaneously began 
increasing its affirmative asylum interviews in order to best serve the 
public. Between March 7, 2022 and January 24, 2023, USCIS conducted an 
additional 27,405 asylum interviews. The original temporary final rule, 
implemented on September 23, 2020, and its extensions implemented on 
March 22, 2021, September 20, 2021, and March 16, 2022, as well as 
other noted public safety measures, have helped mitigate the impact of 
COVID-19 and have been effective in keeping the USCIS workforce and the 
public safe. As of September 17, 2022, there have been 6,807 confirmed 
cases of COVID-19 among USCIS employees and contractors.
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    \19\ See id.
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    DHS has determined that it is in the best interest of the public 
and USCIS employees and contractors to extend the temporary final rule 
for 180 days. This period includes the time until May 11, 2023, while 
the emergency declarations remain in effect, and a period thereafter to 
allow USCIS a sufficient period to properly operationalize the return 
to the requirement that asylum applicants provide interpreters at their 
asylum interviews. Providing for a 180-day extension also gives 
sufficient notice to the public of the expiration of this temporary 
final rule and reversion to past practice.
    Under this fourth extension, USCIS will continue requiring asylum 
applicants who are unable to proceed with the interview in English to 
use government-provided telephonic contract interpreters if the 
applicants speak one of the 47 languages found on the Required 
Languages for Interpreter Services Blanket Purchase Agreement/U.S. 
General Services Administration Language Schedule (GSA Schedule). If 
the applicant does not speak a language on the GSA Schedule or elects 
to speak a language that is not on the GSA Schedule, the applicant will 
be required to bring their own interpreter to the interview who is 
fluent in English and the elected language not on the GSA schedule. In 
the second extension of the temporary final rule, published at 85 FR 
59655, DHS also amended 8 CFR 208.9(h)(1) by allowing, in USCIS' 
discretion, an applicant for asylum to provide an interpreter when a 
USCIS interpreter is unavailable. See 86 FR 51781. Specifically, if a 
USCIS interpreter is unavailable, USCIS will either reschedule the 
interview and attribute the interview delay to USCIS for the purposes 
of employment authorization pursuant to 8 CFR 208.7, or USCIS may, in 
its discretion, allow the applicant to provide an interpreter.
    DHS incorporates into this fourth extension, the justifications 
from the original temporary final rule and all subsequent extensions. 
The measures implemented since the original temporary final rule to 
protect employees, asylum applicants, and other members of the public, 
continue to be a priority for USCIS. Additionally, the modification to 
the second extension (i.e., USCIS exercising discretion to allow an 
asylum applicant to bring an interpreter to the interview if a contract 
interpreter is unavailable), will remain in place. The modification has 
given USCIS flexibility to plan ahead in the limited circumstances when 
a contract interpreter is expected to be unavailable for an asylum 
interview, reducing the likelihood of canceled interviews and unused 
office space. This fourth extension also incorporates the discussions 
on the overall benefits of providing telephonic contract interpreters 
in reducing the risk of contracting COVID-19 for applicants, attorneys, 
interpreters, and USCIS employees, from the original temporary final 
rule and all extensions.

[[Page 16375]]

III. Discussion of Regulatory Change: 8 CFR 208.9(h) 20
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    \20\ The interpreter interview provisions can be found in two 
parallel sets of regulations: Regulations under the authority of DHS 
are contained in 8 CFR part 208; and regulations under the authority 
of the Department of Justice (DOJ) are contained in 8 CFR part 1208. 
Each set of regulations contains substantially similar provisions 
regarding asylum interview processes, and each articulates the 
interpreter requirement for interviews before an asylum officer. 
Compare 8 CFR 208.9(g), with 8 CFR 1208.9(g). This temporary final 
rule and its extensions revise only the DHS regulations at 8 CFR 
208.9. Notwithstanding the language of the parallel DOJ regulations 
in 8 CFR 1208.9, as of the effective date of this action, the 
revised language of 8 CFR 208.9(h) is binding on DHS and its 
adjudications for 180 days. DHS is not bound by the DOJ regulation 
at 8 CFR 1208.9(g).
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    DHS has determined that there are reasonable grounds for 
considering potential exposure to SARS-CoV-2, including any emerging 
variants, as a public health concern and that these grounds are 
sufficient to extend the temporary final rule modifying the interpreter 
requirements for asylum applicants in order to lower the number of in-
person attendees at asylum interviews. Additionally, this extension of 
this temporary final rule provides additional time following the 
expiration of the national and public health emergencies to allow USCIS 
to properly operationalize the return to the requirement that asylum 
applicants provide interpreters at their asylum interviews while also 
giving sufficient notice to the public of the expiration of this 
temporary final rule and reversion to past practice. For 180 days 
following publication of this temporary final rule, DHS will continue 
to require non-English speaking asylum applicants appearing before 
USCIS to proceed with the asylum interview using USCIS' interpreter 
services if they are fluent in one of the 47 languages as discussed in 
the temporary final rule at 85 FR at 59657.\21\
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    \21\ DHS notes that this extension does not modify 8 CFR 
208.9(g); rather the extension of the temporary final rule is 
written so that asylum interviews occurring while the temporary 
final rule is effective will be bound by the requirements at 8 CFR 
208.9(h).
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    Additionally, as provided in 8 CFR 208.9(h)(1)(i), DHS will 
continue to allow, in USCIS' discretion, an applicant for asylum to 
provide an interpreter when a USCIS interpreter is unavailable. The 
reasons for this are in large part due to the increase in the 
affirmative asylum caseload that USCIS has experienced during the 
COVID-19 pandemic. That, in turn, has created challenges in 
accommodating the interpretation needs of asylum applicants while 
balancing workplace health and safety concerns. In order to best serve 
applicants while keeping employees and the public safe, USCIS has set 
limits on the number of people allowed in each individual interview 
space, inclusive of the asylum officer. Requiring applicants to use 
USCIS contract interpreters assists the agency in adhering to evolving 
COVID-19 health and safety standards. While USCIS continues to increase 
scheduling of affirmative asylum interviews, surges in other case types 
have also required USCIS to divert contract interpreter resources away 
from affirmative asylum. For this reason, allowing USCIS the continued 
discretion to permit an applicant to bring their own interpreter to the 
asylum interview assists the agency in balancing needs. These ongoing 
challenges require USCIS to keep the interpreter procedures in place 
for an additional 180 days.
    In these circumstances, if a USCIS interpreter is unavailable, 
USCIS will either reschedule the interview and attribute the interview 
delay to USCIS for the purposes of employment authorization pursuant to 
8 CFR 208.7, or USCIS may, in its discretion, allow the applicant to 
provide an interpreter.\22\ The interpreter will be required to follow 
USCIS COVID-19 protocols in place at the time of the interview.
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    \22\ 8 CFR 208.9(h)(1)(i).
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    Once this temporary final rule is no longer in effect, asylum 
applicants unable to proceed in English with an affirmative asylum 
interview based on a Form I-589, Application for Asylum and for 
Withholding of Removal, before a USCIS asylum officer will be required 
to provide their own interpreters under 8 CFR 208.9(g).
    Given the unique nature of the pandemic and the multiple challenges 
it has presented in the context of USCIS operations, the agency has had 
to modify its policies and procedures to adapt. Through the original 
temporary final rule and the first, second and third extensions, USCIS 
has and continues to adapt and modify its procedures to keep the 
workforce and public safe while also striving to serve its 
customers.\23\ Outside of this rule, USCIS has adapted to the pandemic 
by developing automatic workflows for conducting interviews and 
completing the adjudication, and by monitoring language trends and 
interpreter availability.
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    \23\ USCIS Response to COVID-19 (updated Oct. 24, 2022), https://www.uscis.gov/about-us/uscis-response-to-covid-19 (last visited 
Jan. 12, 2023).
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    DHS noted in the original temporary final rule and prior extensions 
that it would evaluate the public health concerns and resource 
allocations to determine whether to extend the rule. DHS has determined 
that extending this temporary final rule is necessary for public 
safety. Accordingly, DHS is extending this temporary final rule for 180 
days for a fourth time through the anticipated end of the national and 
public health emergencies. This temporary final rule continues to apply 
to all affirmative asylum interviews conducted by USCIS across the 
nation. USCIS has determined that an extension of 180 days is 
appropriate given present conditions: emergency declarations remain in 
effect and there were 3,950 average daily new hospital admissions of 
patients with confirmed COVID-19 from January 24, 2023, to January 30, 
2023.\24\ The extension of 180 days will also permit time beyond the 
anticipated end of the emergency declarations on May 11, 2023, to allow 
USCIS to properly operationalize the return to the requirement that 
asylum applicants provide interpreters at their asylum interviews while 
also giving sufficient notice to the public of the expiration of this 
temporary final rule and reversion to past practice.
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    \24\ Id.; CDC, COVID Data Tracker: New Admissions of Patients 
with Confirmed COVID-19 Per 100,000 Population by Age Group, United 
States (updated Feb. 1, 2023), https://covid.cdc.gov/covid-data-tracker/#new-hospital-admissions (last visited Feb. 2, 2023).
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    USCIS first published this temporary final rule on September 23, 
2020, and subsequently found it necessary to publish three extensions 
to continue its mitigation efforts because of the ongoing pandemic.\25\ 
The initial temporary final rule, the first, and the second extensions 
each had an effective period of 180 days, with the third extension 
having an effective period of 365 days, resulting in this temporary 
final rule being in effect for 905 days thus far.\26\ Compared to the 
third extension, current CDC data supports this shorter extension of 
the temporary final rule, as it demonstrates that while the pandemic is 
ongoing, new infection and hospitalization rates continue to decrease 
throughout the United States.\27\ Considering the period of time that 
the pandemic has been ongoing, the number of times USCIS has had to 
extend this temporary final rule, the extension of the emergency 
declarations to May 11, 2023, and USCIS' operational needs to provide 
sufficient notice to the public regarding the return to the requirement 
for applicants to provide their own interpreter, USCIS has determined 
that an additional extension of 180 days will

[[Page 16376]]

continue to serve the needs of the public and the agency. Extending 
this temporary final rule for 180 days will provide the public and 
USCIS with greater certainty and predictability about how long these 
mitigation efforts will remain in place. That is, with the additional 
time, the agency can proactively plan ahead and focus on providing 
consistent services to asylum applicants rather than expending limited 
resources frequently changing procedures and re-issuing guidance to 
staff and the public.
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    \25\ See 85 FR 59655 (Sept. 23, 2020); 86 FR 15072 (Mar. 22, 
2021); 86 FR 51781 (Sept. 17, 2021); 87 FR 14757 (Mar. 16, 2022).
    \26\ Id.
    \27\ Id.
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    Recognizing that the circumstances of COVID-19 continue to evolve, 
DHS continues to constantly evaluate the public health concerns and its 
mitigation efforts. As conditions improve and the health concerns posed 
by COVID-19 continue to ease during the time period of this fourth 
extension of the temporary final rule, DHS will use the remaining time 
following the end of the declared COVID-19 emergencies to 
operationalize a return to the prior practice of applicants providing 
their own interpreter at their asylum interview while also ensuring the 
public is aware of this change. USCIS recognizes that for many 
applicants, hiring an interpreter for the asylum interview may be a 
costly expense and often requires travel and early scheduling. By 
extending the temporary final rule beyond the expiration of the 
national and public health emergencies, USCIS aims to provide the 
public with enough time to make necessary interpreter arrangements for 
an asylum interview if their interview is scheduled after the 
expiration of this temporary final rule. During this time, USCIS will 
analyze the practice of USCIS providing contract interpreters at 
affirmative asylum interviews to determine whether there may be a 
future need for USCIS to provide contract interpreters and in which 
circumstances this would be most beneficial to the government and the 
public. USCIS will also use the time after expiration of the national 
and public health emergencies to operationalize the changes. Given the 
significant length of time that USCIS has required applicants to use 
contracted interpreters under the previous iterations of the temporary 
final rule, USCIS believes this additional time for the winding down of 
operations is necessary to provide the public adequate notice of the 
return to previous practice. In order to operationalize these changes, 
USCIS will provide notice to the public by updating the USCIS website 
and modifying interview notices and any other related correspondence 
sent to applicants and attorneys. USCIS will notify field office staff 
of the reversion to prior practice by providing updated guidance, 
sending internal communications with updated messaging to the asylum 
offices, and modifying existing procedures. USCIS will also conduct 
outreach to stakeholders, including nonprofits, legal representatives, 
and community organizations, to ensure that asylum applicants are aware 
of the reversion to prior practice as early as possible. USCIS 
recognizes that for many applicants, hiring an interpreter for the 
asylum interview may be a costly expense and often requires travel and 
early scheduling, especially where the applicant speaks a less common 
language. A winddown period past the end of the emergency declarations 
will allow asylum applicants and representatives time to prepare, make 
alternate arrangements, and gather the necessary funds to pay for 
interpreter services. The winddown period will consequently help reduce 
the likelihood of interview reschedules when an applicant is unable to 
bring their own interpreter, and thus also minimize the potential 
impact on an applicant's eligibility for employment authorization. This 
is because the reversion to prior practice will require that when the 
applicant does not provide their own interpreter, the interview delay 
is attributed to the applicant for purposes of employment authorization 
under 8 CFR 208.7. Interview delays attributed to the applicant slow 
the time before the applicant is eligible to apply for work 
authorization. By extending the temporary final rule beyond the end of 
the national emergencies, USCIS can facilitate an orderly and efficient 
return to prior practice and alleviate the burden these changes may 
place on applicants and contracted interpreter services.

IV. Regulatory Requirements

A. Administrative Procedure Act (APA)

    DHS is issuing this extension as a temporary final rule pursuant to 
the APA's ``good cause'' exception. DHS may forgo notice-and-comment 
rulemaking and a delayed effective date because the APA provides an 
exception from those requirements when an agency ``for good cause finds 
. . . that notice and public procedure thereon are impracticable, 
unnecessary, or contrary to the public interest.'' 5 U.S.C. 553(b)(B); 
see 5 U.S.C. 553(d)(3).
    The good cause exception for forgoing notice-and-comment rulemaking 
``excuses notice and comment in emergency situations, or where delay 
could result in serious harm.'' Jifry v. FAA, 370 F.3d 1174, 1179 (D.C. 
Cir. 2004); see Util. Solid Waste Activities Group v. E.P.A, 236 F.3d 
749, 7554 (D.C. Cir. 2001) (exception applies when an agency finds that 
due and timely execution of its functions would be impeded by the 
notice otherwise required . . . , as when a safety investigation shows 
that a new safety rule must be put in place immediately'' (quotation 
marks and alterations omitted)). This is such a situation, with the 
prior extension of this temporary final rule set to expire in March 
2023.
    As of February 1, 2023, there have been over 753 million confirmed 
cases of COVID-19 identified globally, resulting in more than 6.8 
million deaths.\28\ Approximately 100,941,827 cases have been 
identified in the United States, with about 287,580 new cases 
identified during the week of January 23, 2023, and approximately 
1,097,246 reported deaths due to the disease.\29\ Additionally, CDC is 
monitoring several variants of the virus that causes COVID-19.\30\ 
Evidence suggests that some variants may spread faster and more easily 
than others and at least one variant may be associated with an 
increased risk of severe illness.\31\ In January 2023, CDC most 
recently highlighted Omicron subvariant XBB.1.5, which is highly 
transmissible and now accounts for 61.3 percent of new COVID-19 cases 
in the United States.\32\ Although vaccines are widely accessible, 
there is wide disparity in the percentages of who have received updated 
boosters.\33\ Indeed, ongoing research demonstrates that while there is 
high effectiveness of approved vaccines among eligible individuals, 
individuals completing the primary series alone continue to experience 
breakthrough COVID-19 infections and may be either symptomatic or

[[Page 16377]]

asymptomatic.\34\ CDC reports also show that individuals who are 
unvaccinated have a greater risk of testing positive for COVID-19 and a 
greater risk of dying from COVID-19 than individuals who are fully 
vaccinated.\35\
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    \28\ WHO Coronavirus (COVID-19) Dashboard (updated Feb. 01, 
2023), https://covid19.who.int/ (last visited Feb. 1, 2023).
    \29\ Id.
    \30\ CDC, SARS-CoV-2 Variant Classifications and Definitions 
(updated Apr. 26, 2022), https://www.cdc.gov/coronavirus/2019-ncov/variants/variant-classifications.html (last visited Jan. 12, 2023).
    \31\ CDC, What You Need to Know About Variants (updated Aug. 11, 
2021), https://www.cdc.gov/coronavirus/2019-ncov/variants/variant.html (last visited Jan. 12, 2023).
    \32\ CDC, COVID Data Tracker-Variant Proportions (updated Jan. 
28, 2023), https://covid.cdc.gov/covid-data-tracker/#variant-proportions (last visited Feb. 1, 2023); Aliza Rozen, What You Need 
to Know About XBB.1.5, the Latest Omicron Variant.
    \33\ CDC, COVID Data Tracker--COVID-19 Vaccinations in the 
United States (updated Jan. 26, 2023), https://covid.cdc.gov/covid-data-tracker/#vaccinations_vacc-total-admin-rate-total (last visited 
Feb. 1, 2023).
    \34\ CDC, The Possibility of COVID-19 after Vaccination: 
Breakthrough Infections (updated June 23, 2022), https://www.cdc.gov/coronavirus/2019-ncov/vaccines/effectiveness/why-measure-effectiveness/breakthrough-cases.html (last visited Jan. 12, 
2023).
    \35\ CDC, Rate of COVID-19 Cases and Deaths by Vaccination 
Status, https://covid.cdc.gov/covid-data-tracker/#rates-by-vaccine-status (last visited Jan. 12, 2023).
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    As of January 24, 2023, USCIS had 697,290 asylum applications 
pending final adjudication. The vast majority of these pending 
applications are awaiting an interview by an asylum officer. The USCIS 
backlog will continue to increase at a faster pace if USCIS is unable 
to safely and efficiently conduct asylum interviews.\36\
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    \36\ DHS recognizes that the backlog has increased since the 
original temporary final rule was extended; however, if all 
applicants were required to bring their own interpreter as was done 
pre-COVID-19, the interpreter may have to sit in a separate office 
during the interview to mitigate potential COVID-19 exposure, 
thereby reducing available office space to schedule additional 
interviews in a safe manner. This would likely increase the backlog 
at a faster rate than under this rule.
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    Upon the Administration's January 2023 announcement of its plan to 
extend the emergency declarations through May 11, 2023, it became clear 
to USCIS that another extension of this temporary final rule, which 
otherwise would expire in March 2023, would be warranted. However, that 
did not leave DHS with sufficient time to provide notice and receive 
comment before the expiration of the third extension of this rule. DHS 
is thus publishing this fourth extension as a temporary final rule. As 
discussed more thoroughly above, given the continuing national 
emergency caused by COVID-19, and the extension of the emergency 
declarations through May 11, 2023, there are still urgent and 
compelling reasons to extend and continue this temporary final rule. 
The temporary final rule is limited in application to only those asylum 
applicants who cannot proceed with the interview in English and 
narrowly tailored to mitigate the spread of COVID-19. Extending the 
temporary final rule will allow USCIS to better manage how many people 
attend asylum interviews and the precautions used during those 
interviews, thereby reducing the likelihood of COVID-19 transmission 
and protecting the health and safety of USCIS employees and asylum 
applicants. To not extend this measure could cause serious detriment to 
public safety and health.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., as amended by 
the Small Business Regulatory Enforcement Fairness Act of 1996, 
requires an agency to prepare and make available to the public a 
regulatory flexibility analysis that describes the effect of the rule 
on small entities (i.e., small businesses, small organizations, and 
small governmental jurisdictions). A regulatory flexibility analysis is 
not required when a rule is exempt from notice-and-comment rulemaking.

C. Unfunded Mandates Reform Act of 1995

    This temporary final rule extension will not result in the 
expenditure by state, local, and tribal governments, in the aggregate, 
or by the private sector, of $100 million or more in any one year, and 
it will not significantly or uniquely affect small governments. 
Therefore, no actions were deemed necessary under the provisions of the 
Unfunded Mandates Reform Act of 1995.

D. Small Business Regulatory Enforcement Fairness Act of 1996

    OMB's Office of Information and Regulatory Affairs has determined 
that this action is not a major rule as defined by Subtitle E of the 
Small Business Regulatory Enforcement Fairness Act of 1996 (also known 
as the Congressional Review Act). 5 U.S.C. 804(2). This rule will not 
result in an annual effect on the economy of $100 million or more; a 
major increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based enterprises to compete with foreign-
based enterprises in domestic and export markets.

E. Executive Order 12866 and Executive Order 13563

    Executive Orders (E.O.) 12866 and 13563 direct agencies to assess 
the costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
reducing costs, harmonizing rules, and promoting flexibility. This rule 
is designated a significant regulatory action under E.O. 12866. 
Accordingly, the Office of Management and Budget (OMB) has reviewed 
this regulation. DHS, however, is proceeding under the emergency 
provision of Executive Order 12866 Section 6(a)(3)(D) based on the need 
to move expeditiously during the current public health emergency which 
has been extended past the expiration of the third temporary final rule 
extension until May 11, 2023.
    This action will continue to help asylum applicants proceed with 
their interviews in a safe manner, while protecting agency staff 
throughout the next year or until the health concerns posed by COVID-19 
are resolved. As a result of the temporary final rule and subsequent 
extensions, USCIS conducted 32,012 total asylum interviews between 
September 23, 2020 and March 7, 2022 and an additional 27,405 asylum 
interviews between March 7, 2022 and January 24, 2023. This fourth 
extension is not expected to result in any additional costs to the 
government. In addition, even with the provision that permits, at 
USCIS' discretion, an applicant for asylum to provide an interpreter 
when a contract interpreter is unavailable, there are no additional 
costs to the applicant relative to what would be the requirements if 
the temporary final rule were not extended. In those limited 
circumstances, the interpreter will still be required to follow USCIS 
COVID-19 protocols in place at the time of the interview. Following 
those COVID-19 protocols will not result in any additional costs for 
either the applicant or the interpreter.
    Such contract interpreters will continue to be provided at no cost 
to the applicant. USCIS has an existing contract to provide telephonic 
interpretation and monitoring in interviews for all of its case types. 
USCIS has provided contract monitors for many years at interviews where 
the applicant brings an interpreter. In other words, almost all 
interviews that utilize a USCIS provided interpreter under this 
temporary final rule would have required instead a contracted monitor 
during asylum interviews conducted pre-pandemic. Additionally, the cost 
of monitoring and interpretation are identical under the current 
contract and monitors are no longer needed for interviews conducted 
through a USCIS-provided contract interpreter. Therefore, the continued 
extension of the temporary final rule is projected to be cost neutral 
or negligible for the government because USCIS is already paying for 
these services even without this rule.
    In the limited circumstances where a contract interpreter is 
unavailable, USCIS will either reschedule the interview and attribute 
the interview delay to USCIS for the purposes of

[[Page 16378]]

employment authorization pursuant to 8 CFR 208.7, or USCIS may, in its 
discretion, allow the applicant to provide an interpreter.\37\ In such 
cases, the applicant would be in the same position they would have been 
without this action.
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    \37\ 8 CFR 208.9(h)(1)(i).
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    DHS recognizes there are both quantitative and qualitative benefits 
that could be realized by providing an applicant for asylum the 
opportunity to bring their own interpreter when a contract interpreter 
is unavailable, such as the costs avoided that would otherwise be 
incurred due to rescheduling if a contract interpreter is unavailable--
both for the applicant and USCIS--and the overall positive effect on 
applicants of having their asylum application timely adjudicated. Once 
this rule is no longer in effect, asylum applicants unable to proceed 
with an affirmative asylum interview before a USCIS asylum officer in 
English will again be required to provide their own interpreters under 
8 CFR 208.9(g). By extending the temporary final rule beyond the end of 
the national emergencies, USCIS can facilitate an orderly and efficient 
return to prior practice and alleviate the burden these changes may 
place on applicants, contracted interpreter services, and USCIS offices 
scheduling affirmative asylum interviews.

F. Executive Order 13132 (Federalism)

    This rule will not have substantial direct effects on the States, 
on the relationship between the National Government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with section 6 of 
Executive Order 13132, it is determined that this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

G. Executive Order 12988 (Civil Justice Reform)

    This rule meets the applicable standards set forth in section 3(a) 
and 3(b)(2) of Executive Order 12988.

H. Paperwork Reduction Act

    This rule does not propose new, or revisions to existing, 
``collection[s] of information'' as that term is defined under the 
Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. chapter 
35, and its implementing regulations, 5 CFR part 1320. As this would 
only span 180 days, USCIS does not anticipate a need to update the Form 
I-589, Application for Asylum and for Withholding of Removal, despite 
the existing language on the form instructions regarding interpreters. 
USCIS will continue to post updates on its Form I-589 website, https://www.uscis.gov/i-589, and other asylum and relevant web pages regarding 
the interview requirements in this regulation, as well as provide 
personal notice to applicants via the interview notices issued to 
applicants prior to their interview.

List of Subjects in 8 CFR Part 208

    Administrative practice and procedure, Aliens, Immigration, 
Reporting and recordkeeping requirements.

    Accordingly, for the reasons set forth in the preamble, the 
Secretary of Homeland Security amends 8 CFR part 208 as follows:

PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL

0
1. The authority citation for part 208 continues to read as follows:

    Authority:  8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title 
VII of Pub. L. 110-229; 8 CFR part 2; Pub. L. 115-218.


0
2. Effective from March 16, 2023 through September 12, 2023, amend 
Sec.  208.9 by revising paragraph (h) introductory text to read as 
follows:


Sec.  208.9   Procedure for interview before an asylum officer.

* * * * *
    (h) Asylum applicant interpreters. For asylum interviews conducted 
between March 16, 2023, through September 12, 2023:
* * * * *

Alejandro Mayorkas,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2023-05572 Filed 3-15-23; 11:15 am]
BILLING CODE 9111-97-P