DHS Changes Asylum Referrals, Allowing Some Cases to Reach Immigration Court Without Interviews
The Department of Homeland Security has changed how certain affirmative asylum applications move into immigration court, allowing U.S. Citizenship and Immigration Services to refer qualifying cases to the Justice Department’s Executive Office for Immigration Review without first conducting an interview.
The interim final rule took effect July 28, 2026. It also removes a requirement that referral letters include an assessment of the applicant’s credibility. Written comments on the rule are due Sept. 28, 2026.
The change applies nationally to the asylum-adjudication system administered by DHS, USCIS and the Justice Department’s EOIR. It is a procedural change to the path some applications take; the approved notice does not establish that an asylum claim has been finally denied.
What the rule changes
Affirmative asylum applications are handled by USCIS before a possible referral to the immigration court system administered by EOIR. Under the amended regulations, USCIS may refer certain applications to EOIR without an interview.
That means an applicant whose case falls within the rule may be sent from the USCIS process into immigration court without the interview that would otherwise be part of the agency’s handling of the application. The rule is limited to certain affirmative asylum cases. It does not establish that every asylum applicant will lose access to an interview.
A referral also is not the same as a final asylum denial. The change governs when and how some cases move from USCIS to EOIR, rather than declaring every referred application unsuccessful.
The rule makes a separate change to referral paperwork. Referral letters no longer have to include an assessment of the applicant’s credibility. The letter is part of the step that moves a case from USCIS toward immigration court, and the removal of the requirement changes what the document must contain.
Why the change matters
For applicants covered by the rule, the central practical issue is whether USCIS conducts an interview before referring the application to immigration court. The new authority permits that referral to occur without an interview.
The change therefore affects the transition between two parts of the federal asylum system: USCIS, which handles affirmative applications, and EOIR, which handles the immigration-court process. The notice identifies the change in procedure but does not provide an estimate of how many applications will be affected.
The approved source also does not provide an agency estimate of the rule’s operational effects. That leaves the scope of the change, in numerical terms, unspecified in the available notice.
The rule’s status as an interim final rule is also important. It is already effective, while the public has a stated opportunity to submit written comments. The effective date and comment period are separate: the rule began operating July 28, while comments remain due Sept. 28.
What happens next
The next fixed date is the Sept. 28, 2026, deadline for written comments. The Justice Department’s notice lists the rule’s July 28 publication and effective date and identifies the comment deadline.
The same notice describes the two central regulatory changes: certain affirmative asylum applications may be referred to EOIR without an interview, and referral letters no longer must include a credibility assessment.
The approved source packet does not identify independent litigation over the rule as of Aug. 7, 2026. It also does not establish the rule’s legality or predict its ultimate court outcome.
For now, the confirmed development is procedural and national in scope. In qualifying affirmative asylum cases, USCIS has authority to refer an application to EOIR without an interview, while the referral letter no longer must contain a credibility assessment. The rule is in force, and the next stated opportunity for public input is the Sept. 28 comment deadline.
Sources
- Executive Office for Immigration Review Federal Register Notices 2026, U.S. Department of Justice
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