By Darius Amiri, Rose Law Group Partner and Chairman of the Immigration Law Department
For years, this countries asylum backlog has been enormous, and has only continued to grow. There is no question that the system needs reform. Unfortunately, the latest changes announced by the Department of Homeland Security (DHS)may create more even more problems than it purports to solve.
Traditionally, the United States has handled applications for asylum in two distinct processes. Affirmative asylum applications, where a foreign national with a fear of return to their home country based on persecution for a protected ground (race, religion, nationality, politics, or membership in a particular social group) files an application with United States Citizenship and Immigration Services (USCIS) that documents their fear of return, including an affidavit and supporting evidence. That case is received, biometrics are scheduled, the applicant is eligible to apply for an employment authorization document after the case has been pending 180 days, and they remain in queue to receive an interview date.
Defensive asylum applications are reviewed in immigration court, when a foreign national has the right to file an application with an immigration judge as a form of relief against removal from the United States. Importantly, an affirmative asylum application that a United States Citizenship and Immigration Services officer cannot grant is referred to immigration court, where the candidate gets an opportunity for a de novo review by a judge.
Under a new interim final rule that took effect July 28, 2026, USCIS can now refer certain affirmative asylum applications to immigration court without first conducting an asylum interview. USCIS will continue to conduct interviews in cases it intends to grant or deny, but an interview is no longer required before a case is referred to an immigration judge.
Why Does This Matter?
The asylum interview has traditionally been an important part of the affirmative asylum process. It gives an applicant an opportunity to explain their story directly to an asylum officer, clarify inconsistencies, provide context, and address questions about their eligibility. Under the new system, some applicants may instead have their cases reviewed largely on the written record and then sent directly to immigration court. That may sound like an efficient way to reduce the backlog. In practice, however, it risks simply moving the backlog from USCIS to the already overwhelmed immigration courts. And for the applicant, being referred to immigration court is a significant change. Instead of waiting for an interview with USCIS, the applicant may suddenly find themselves defending an asylum claim in removal proceedings.
Who Could Be Affected?
The rule allows USCIS to refer cases without an interview in certain circumstances, including cases involving potential filing or eligibility issues, such as applications filed after the one-year deadline or cases that appear to be subject to an asylum bar. Importantly, a referral is not a denial of asylum. The applicant can still present the asylum claim to an immigration judge.
But the change means that applicants can no longer assume that they will have a USCIS interview before their case moves into the immigration court system.
Whether this new rule actually reduces the backlog remains to be seen. The administration’s stated goal is to make the asylum system more efficient and reduce a backlog that has grown to more than one million pending affirmative asylum cases. But referring cases to immigration court does not make the underlying asylum claims disappear. Instead, it risks shifting more cases into a court system that already has a substantial backlog of its own.
From a practitioner’s perspective, this is the biggest concern with the new approach: a policy designed to make the asylum system faster could ultimately make the process more adversarial, more complicated, and more difficult for both applicants and the government. Applicants with pending affirmative asylum cases should not panic, but they should take the change seriously.
If you have a pending I-589—particularly if your application was filed more than one year after your last entry into the United States or your case involves complicated facts—it may be worthwhile to have the existing filing reviewed. Our immigration attorneys will continue monitoring this rule, its implementation, and any legal challenges that may affect asylum applicants.