Home/Federal/Federal Register/2024-07345

Rule2024-07345

Temporary Increase of the Automatic Extension Period of Employment Authorization and Documentation for Certain Employment Authorization Document Renewal Applicants

Primary source

Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.

Published

April 8, 2024

Effective

April 8, 2024

Issuing agencies

Homeland Security Department

Abstract

This rule temporarily amends existing Department of Homeland Security (DHS) regulations to provide that the automatic extension period applicable to expiring Employment Authorization Documents (Forms I-766 or EADs) for certain renewal applicants who have filed Form I- 765, Application for Employment Authorization (EAD application), will be increased from up to 180 days to up to 540 days from the expiration date stated on their EADs. DHS is taking these steps to help prevent renewal applicants from experiencing a lapse in their employment authorization and documentation.

Full Text

<html>
<head>
<title>Federal Register, Volume 89 Issue 68 (Monday, April 8, 2024)</title>
</head>
<body><pre>
[Federal Register Volume 89, Number 68 (Monday, April 8, 2024)]
[Rules and Regulations]
[Pages 24628-24676]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-07345]

[[Page 24627]]

Vol. 89

Monday,

No. 68

April 8, 2024

Part III

Department of Homeland Security

-----------------------------------------------------------------------

8 CFR Part 274a

Temporary Increase of the Automatic Extension Period of Employment
Authorization and Documentation for Certain Employment Authorization
Document Renewal Applicants; Temporary Final Rule

Federal Register / Vol. 89 , No. 68 / Monday, April 8, 2024 / Rules
and Regulations

[[Page 24628]]

-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 274a

[CIS No. 2767-24; DHS Docket No. USCIS-2024-0002]
RIN 1615-AC78

Temporary Increase of the Automatic Extension Period of
Employment Authorization and Documentation for Certain Employment
Authorization Document Renewal Applicants

AGENCY: U.S. Citizenship and Immigration Services, DHS.

ACTION: Temporary final rule with request for comments.

-----------------------------------------------------------------------

SUMMARY: This rule temporarily amends existing Department of Homeland
Security (DHS) regulations to provide that the automatic extension
period applicable to expiring Employment Authorization Documents (Forms
I-766 or EADs) for certain renewal applicants who have filed Form I-
765, Application for Employment Authorization (EAD application), will
be increased from up to 180 days to up to 540 days from the expiration
date stated on their EADs. DHS is taking these steps to help prevent
renewal applicants from experiencing a lapse in their employment
authorization and documentation.

DATES:
Effective dates: This temporary final rule (TFR) is effective April
8, 2024, through September 20, 2027, except for the amendments to 8 CFR
274a.13(d)(5), which are effective from April 8, 2024 through October
15, 2025.
Submission of public comments: Comments must be received on or
before June 7, 2024.

ADDRESSES: You may submit comments on the entirety of this temporary
final rule package, identified by DHS Docket No. USCIS-2024-0002,
through the Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Follow the website instructions for submitting comments. The electronic
Federal Docket Management System will accept comments before midnight
Eastern time on June 7, 2024.
Comments must be submitted in English, or an English translation
must be provided. Comments that will provide the most assistance to
USCIS in implementing these changes will reference a specific portion
of the proposed rule, explain the reason for any recommended change,
and include data, information, or authority that support such
recommended change. Comments submitted in a manner other than as
provided above, including emails or letters sent to DHS or U.S.
Citizenship and Immigration Services (USCIS) officials, will not be
considered comments on the TFR and may not receive a response from DHS.
Please note that DHS and USCIS cannot accept any comments that are
hand-delivered or couriered. In addition, USCIS cannot accept comments
contained on any form of digital media storage devices, such as CDs/
DVDs and USB drives. USCIS is also not accepting mailed comments at
this time. If you cannot submit your comment by using <a href="https://www.regulations.gov">https://www.regulations.gov</a>, please contact Samantha Deshommes, Chief,
Regulatory Coordination Division, Office of Policy and Strategy, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
by telephone at (240) 721-3000 (not a toll-free call) for alternate
instructions.

FOR FURTHER INFORMATION CONTACT: Charles Nimick, Chief, Business and
Foreign Workers Division, Office of Policy and Strategy, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
5900 Capital Gateway Drive, Camp Springs, MD 20746; telephone 240-721-
3000 (not a toll-free call).

SUPPLEMENTARY INFORMATION:

Public Participation

DHS invites you to participate in this rulemaking by submitting
written data, views, or arguments on all aspects of this temporary
final rule. DHS also invites comments that relate to the economic,
environmental, or federalism effects that might result from this
temporary final rule. Comments must be submitted in English, or an
English translation must be provided. Comments that will provide the
most assistance to DHS will reference a specific provision of the
temporary final rule, explain the reason for any recommended change,
and include data, information, or authority that supports the
recommended change. Comments submitted in a manner other than
explicitly provided in this section, including emails or letters sent
to USCIS or DHS officials, will not be considered comments on the TFR
and may not receive a response.
In addition to seeking comments on all aspects of this TFR, DHS
also invites the public to comment on the following:
<bullet> Whether DHS regulations should be revised to permanently
lengthen the period of the automatic extension period to up to 540 days
for employment authorization and/or EAD validity for eligible renewal
applicants;
<bullet> Whether a different permanent extension period should be
implemented, for some or all applicants covered by the automatic
extension provision on either a temporary or permanent basis; and
<bullet> Whether other solutions should be considered to mitigate
the risk of expiring employment authorization and/or EAD validity for
some or all applicants covered by the automatic extension provision.
DHS also specifically seeks comments on the regulatory alternatives
described in section III.C. and V.B. of this preamble.

Instructions

All submissions should include the agency name and DHS Docket No.
USCIS-2024-0002 for this rulemaking. Providing comments is entirely
voluntary. DHS will post all submissions, without change, to the
Federal eRulemaking Portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a> and will
include any personal information you provide. Because the information
you submit will be publicly available, you should consider limiting the
amount of personal information in your submission. DHS may withhold
information provided in comments from public viewing if it determines
that such information is offensive or may affect the privacy of an
individual. For additional information, please read the Privacy and
Security notice available through the link in the footer of <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Docket: For access to the docket and to read comments received, go
to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, referencing DHS Docket No. USCIS-2024-
0002. You may also sign up for email alerts on the online docket to be
notified when comments are posted or a subsequent rulemaking is
published.

I. Executive Summary

A. Purpose and Summary of the Regulatory Action

DHS has determined that the up to 180-day automatic extension under
8 CFR 274a.13(d) is currently not enough time for the growing number of
renewal EAD applicants. Without this TFR, approximately 800,000 renewal
EAD applicants will be in danger of having their applications remain
pending beyond the 180-day automatic extension period, resulting in
applicants losing employment authorization and/or EAD validity in the
approximately 2-year period beginning May 2024 because of USCIS
processing delays and through no fault of their own. Such widescale
lapses in employment authorization and EAD validity would result in
substantial and unnecessary harm to noncitizens

[[Page 24629]]

who timely filed for extensions of employment authorization, their
families, their employers, and the public at large. To avert these gaps
in employment authorization and/or EAD validity for certain renewal EAD
applicants, and the resulting harmful effects gaps can cause, DHS is
temporarily amending existing DHS regulations to increase the automatic
extension period applicable to expiring employment authorization and/or
EADs (Form I-766) for certain renewal applicants who have filed EAD
applications from up to 180 days to up to 540 days from the expiration
date stated on their EADs. The increase will be available to any
eligible renewal EAD applicant with an application filed on or after
October 27, 2023, and pending on or after April 8, 2024 and any
eligible applicant who files a renewal EAD application during the 540-
day period beginning on or after April 8, 2024 and ending September 30,
2025. DHS has decided to focus on near-term uncertainty and critical
needs of applicants, their families, and their employers by ensuring
that, through this TFR, none of them will imminently or in the near-
term experience the harmful effects caused by gaps in employment
authorization and/or EAD validity due to processing delays. At the same
time, this rule provides DHS with an additional window during which it
can consider long-term solutions by soliciting public comments,
evaluating the effects of ongoing and future policy and operational
changes described throughout this rule, and continuing to identify new
strategies and efficiencies.

B. Summary of Legal Authority

The authority for the Secretary of Homeland Security (Secretary) to
issue this TFR is found in section 274A(h)(3)(B) of the INA, 8 U.S.C.
1324a(h)(3)(B), which recognizes the Secretary's authority to extend
employment authorization to noncitizens in the United States, and
section 101(b)(1)(F) of the Homeland Security Act (HSA), 6 U.S.C.
111(b)(1)(F), which establishes as a primary mission of DHS the duty to
``ensure that the overall economic security of the United States is not
diminished by efforts, activities, and programs aimed at securing the
homeland.'' Under section 103(a) of the INA, 8 U.S.C. 1103(a), the
Secretary is authorized to administer the immigration and nationality
laws and establish such regulations as the Secretary deems necessary
for carrying out such authority.

C. Summary of the TFR Provisions

This rule amends 8 CFR 274a.13(d) as follows:
<bullet> New 8 CFR 274a.13(d)(6): DHS is adding a new paragraph 8
CFR 274a.13(d)(6). With this new paragraph, DHS is temporarily
increasing the regular automatic extension period for employment
authorization and/or EAD validity of up to 180 days under 8 CFR
274a.13(d)(1) to a period of up to 540 days for renewal applicants
eligible to receive an automatic extension.
<bullet> Amending existing 8 CFR 274a.13(d)(5): To avoid confusion
between the automatic extension period granted under new 8 CFR
274a.13(d)(6) and existing 8 CFR 274a.13(d)(5), DHS is revising the
heading of existing 8 CFR 274a.13(d)(5). 8 CFR 274a.13(d)(5) only
applies to EAD renewal applications properly filed on or before October
26, 2023. The new heading will clearly reflect the date. DHS is neither
extending nor otherwise amending 8 CFR 274a.13(d)(5).

D. Summary of Costs and Benefits

This rule results in stabilization of earnings worth $29.1 billion
to employment-authorized immigrants, cost savings of $5.2 billion to
U.S. employers from avoided labor turnover, and is expected to yield
$3.1 billion in employment tax transfer payments over a 5-year period
of analysis using a 2 percent discounting rate (see Table 13 for more
information). While the EAD end dates are known to USCIS and can be
used to accurately project lapses, there is uncertainty around the
monetized, economic impacts due to the timing of EAD renewal filing
behavior and the resulting duration of lapses experienced by workers of
varying wages in the absence of this rule. The Regulatory Impact
Analysis discusses the low end and high end estimates that bound the
expected impacts of this regulatory action.

II. Background

USCIS' ability to process both initial and renewal EAD applications
within USCIS' targeted processing times has been adversely impacted by
a variety of unforeseeable and dynamic events and circumstances,
described in the following sections. As a result, DHS has found it
necessary to take actions to reduce the likelihood that certain
applicants for renewal EADs experience unnecessary lapses in their
employment authorization and/or proof of employment authorization
because of USCIS processing delays and through no fault of their own.
Such widescale lapses in employment authorization and EAD validity
would result in substantial and unnecessary harm to noncitizens who
timely filed for extensions of employment authorization, their
families, their employers, and the public at large.
In 2021, a surge in EAD applications, coupled with operational
challenges exacerbated by the COVID-19 pandemic, resulted in a
significant increase in EAD application processing times. The EAD
application processing times increased to such a level that the 180-day
automatic extension of employment authorization for certain pending
renewal EAD applications \1\ was insufficient to prevent many renewal
applicants from experiencing a lapse in employment authorization and/or
documentation while their renewal applications remained pending with
USCIS.
---------------------------------------------------------------------------

\1\ See 8 CFR 274a.13(d).
---------------------------------------------------------------------------

In May 2022, DHS published a temporary final rule (``2022 TFR'')
that, for certain renewal EAD applications filed during a limited
period that ended on October 26, 2023, increased the automatic
extension period from up to 180 days to up to 540 days.\2\ This measure
helped minimize gaps in employment authorization and/or EAD validity
for certain renewal EAD applicants, while giving USCIS a window of time
to address its backlogs through operational and sub-regulatory
measures. Those operational and sub-regulatory measures helped USCIS to
work toward its goal of returning to regular processing times.
---------------------------------------------------------------------------

\2\ See 87 FR 26614 (May 4, 2022) (2022 TFR).
---------------------------------------------------------------------------

Although USCIS' efforts since the issuance of the 2022 TFR
prevented a substantial number of renewal applicants from experiencing
a lapse in their employment authorization and/or documentation, the
processing times for renewal EAD applications are currently at such a
level that the current 180-day automatic extension period for certain
renewal EAD applications remains insufficient to prevent a large number
of lapses in the coming months.
Accordingly, DHS is again taking steps to help prevent certain
renewal EAD applicants from experiencing a lapse in their employment
authorization, valid documentation of their employment authorization,
or both, while their renewal applications remain pending. USCIS also
continues to implement other solutions to return processing times to
target levels, as detailed in section III.B of the preamble.
Without this 2024 TFR, approximately 800,000 renewal applicants
will be in danger of losing their employment authorization and/or

[[Page 24630]]

documentation in the period beginning May 2024 and ending March
2026.\3\ If faced with a disruption of their employment authorization
and/or documentation, these renewal applicants may lose their jobs
through no fault of their own, and employers may be faced with finding
replacement workers, an undue burden that is exacerbated during a time
when the U.S. economy is experiencing more job openings than available
workers.\4\
---------------------------------------------------------------------------

\3\ See section V.B.2. Table 7, TFR Future Population
Projections by Month, Rounded to Thousands.
\4\ Bureau of Labor Statistics data show that, as of December
2023, there were 0.7 unemployed persons per job opening. See U.S.
Department of Labor, U.S. Bureau of Labor Statistics, ``Number of
unemployed persons per job opening, seasonally adjusted,'' <a href="https://www.bls.gov/charts/job-openings-and-labor-turnover/unemp-per-job-opening.htm">https://www.bls.gov/charts/job-openings-and-labor-turnover/unemp-per-job-opening.htm</a> (last visited Feb. 6, 2024).
---------------------------------------------------------------------------

Therefore, DHS has determined that it is imperative to increase the
automatic extension period of employment authorization and/or EAD
validity for eligible renewal EAD applicants for a temporary period.
This temporary increase to the automatic extension period will be
effective April 8, 2024 and will apply to renewal EAD applications that
are properly filed on or after October 27, 2023,\5\ and on or before
September 30, 2025.
---------------------------------------------------------------------------

\5\ The 2022 TFR increased the automatic extension period from
up to 180 days to up to 540 days for certain renewal EAD
applications filed on or after May 4, 2022, and on or before October
26, 2023. Beginning on October 27, 2023, the automatic extension
period reverted to the original 180-day period for those eligible
applicants who timely file Form I-765 renewal applications. For
individuals who received an increased automatic extension under the
2022 TFR, the automatic extension generally will end when they
receive a final decision on their renewal application or the end of
the up to 540-day period, whichever comes earlier.
---------------------------------------------------------------------------

This new temporary increase to the automatic extension period will,
in most cases, help avoid the gaps in employment authorization and/or
documentation that could otherwise affect eligible renewal EAD
applicants, their families, and their U.S. employers in those cases
where USCIS is unable to process their renewal applications within the
180-day automatic extension period provided under the current
regulation.

A. Legal Authority

The Secretary of Homeland Security's (Secretary) authority for the
regulatory amendments made in this TFR are found in various sections of
the Immigration and Nationality Act (INA or the Act), 8 U.S.C. 1101 et
seq., and the Homeland Security Act of 2002 (HSA), Public Law 107-296,
116 Stat. 2135 (codified in part at 6 U.S.C. 101 et seq.). General
authority for issuing this TFR is found in section 103(a) of the INA, 8
U.S.C. 1103(a), which authorizes the Secretary to administer and
enforce the immigration and nationality laws and establish such
regulations as the Secretary deems necessary for carrying out such
authority, as well as section 102 of the HSA, 6 U.S.C. 112, which vests
all of the functions of DHS in the Secretary and authorizes the
Secretary to issue regulations.\6\ Further authority for this TFR is
found in:
---------------------------------------------------------------------------

\6\ Although several provisions of the INA discussed in this TFR
refer exclusively to the ``Attorney General,'' such provisions are
now to be read as referring to the Secretary of Homeland Security by
operation of the HSA. See 6 U.S.C. 202(3), 251, 271(b), 542 note,
557; 8 U.S.C. 1103(a)(1) and (g), 1551 note; Nielsen v. Preap, 139
S. Ct. 954, 959 n.2 (2019).
---------------------------------------------------------------------------

<bullet> Section 208(d)(2) of the INA, 8 U.S.C. 1158(d)(2), which
authorizes the Secretary to grant employment authorization to
applicants for asylum if 180 days have passed since filing an
application for asylum;
<bullet> Section 214 of the INA, 8 U.S.C. 1184, including section
214(a)(1) of the INA, 8 U.S.C. 1184(a)(1), which authorizes the
Secretary to prescribe, by regulation, the time and conditions of the
admission of nonimmigrants;
<bullet> Section 244(a)(1)(B) of the INA, 8 U.S.C. 1254a(a)(1)(B),
which states that the Secretary shall authorize employment and provide
evidence of employment authorization for noncitizens who have been
granted Temporary Protected Status;
<bullet> Section 274A(h)(3)(B) of the INA, 8 U.S.C. 1324a(h)(3)(B),
which recognizes the Secretary's authority to extend employment
authorization to noncitizens in the United States; and
<bullet> Section 101(b)(1)(F) of the Homeland Security Act, 6
U.S.C. 111(b)(1)(F), which establishes as a primary mission of DHS the
duty to ``ensure that the overall economic security of the United
States is not diminished by efforts, activities, and programs aimed at
securing the homeland.''

B. Legal Framework for Employment Authorization

1. Types of Employment Authorization: 8 CFR 274a.12(a), (b), and (c)
Whether a noncitizen is authorized to work in the United States
depends on the noncitizen's immigration status or other conditions that
may permit employment authorization (for example, having a pending
application for asylum or a grant of deferred action). DHS regulations
outline three classes of noncitizens who may be eligible for employment
in the United States, as follows:\7\
---------------------------------------------------------------------------

\7\ There are several employment-eligible categories that are
not included in DHS regulations, but instead are described in the
form instructions to Form I-765, Application for Employment
Authorization (EAD application). Employment-authorized L
nonimmigrant spouses are an example. See INA sec. 214(c)(2)(E), 8
U.S.C. 1184(c)(2)(E).
---------------------------------------------------------------------------

<bullet> Noncitizens in the first class, described at 8 CFR
274a.12(a), are authorized to work ``incident to status'' for any
employer, as well as to engage in self-employment, as a condition of
their immigration status or circumstances. This means that for certain
eligible noncitizens, employment authorization is granted with the
underlying immigration status (called ``incident to status'' employment
authorization). Although authorized to work as a condition of their
status or circumstances, certain classes of noncitizens must apply to
USCIS in order to receive a Form I-766 EAD as evidence of that
employment authorization.\8\
---------------------------------------------------------------------------

\8\ See 8 CFR 274a.12(a).
---------------------------------------------------------------------------

<bullet> Noncitizens in the second class, described at 8 CFR
274a.12(b), also are authorized to work ``incident to status'' as a
condition of their immigration status or circumstances, but generally
the authorization is valid only with a specific employer.\9\ These
noncitizens are issued an Arrival-Departure Record (Form I-94)
indicating their employment-authorized status in the United States and
do not file separate requests for evidence of employment authorization.
---------------------------------------------------------------------------

\9\ See 8 CFR 274a.12(b).
---------------------------------------------------------------------------

<bullet> Noncitizens in the third class, described at 8 CFR
274a.12(c), are required to apply for employment authorization and may
work only if USCIS, in its discretion, approves their application. They
are authorized to work for any employer or engage in self-employment
upon approval of their EAD application, subject to certain
restrictions, so long as their EAD remains valid.\10\
---------------------------------------------------------------------------

\10\ See 8 CFR 274a.12(c); Matter of Tong, 16 I&N Dec. 593, 595
(BIA 1978) (holding that the term ```employment' is a common one,
generally used with relation to the most common pursuits,'' and
includes ``the act of being employed for one's self'').
---------------------------------------------------------------------------

2. The Application Process for Obtaining Employment Authorization and
EADs: 8 CFR 274a.13(a)
For certain eligibility categories listed in 8 CFR 274a.12(a) (the
first class) and all eligibility categories listed in 8 CFR 274a.12(c)
(the third class), as well as additional categories specified in form
instructions, an EAD application must be properly filed with USCIS
(with fee

[[Page 24631]]

or fee waiver, as applicable) to receive employment authorization and/
or an EAD.\11\ EADs issued under 8 CFR 274a.12(a) or (c) generally
allow these noncitizens to work for any U.S. employer or engage in
self-employment, subject to certain restrictions, as applicable. If an
EAD application is granted under CFR 274a.12(a), the resultant EAD
provides the noncitizen with proof of employment authorization incident
to status or circumstance. Certain noncitizens may file EAD
applications concurrently with related benefit requests if permitted by
the form instructions or as announced by USCIS.\12\ In such instances,
the underlying benefit requests, if granted, would form the basis for
an EAD or eligibility to apply for employment authorization. For
eligibility categories listed in 8 CFR 274a.12(a) and (c), USCIS has
the discretion to establish a specific validity period for the EAD.\13\
---------------------------------------------------------------------------

\11\ See 8 CFR 103.2(a) and 8 CFR 274a.13(a). An applicant who
is employment authorized incident to status (e.g., asylees,
refugees, TPS beneficiaries) may file an EAD application to request
an EAD. Applicants who are filing within an eligibility category
listed in 8 CFR 274a.12(c) must, by contrast, use the EAD
application form to request both employment authorization and an
EAD.
\12\ See 8 CFR 274a.13(a). For example, the spouse of an H-1B
worker may file an EAD application at the same time as their Form I-
539, Application to Extend/Change Nonimmigrant Status. See USCIS,
DHS, ``Employment Authorization for Certain H-4, E Dependent
Spouses,'' <a href="https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/employment-authorization-for-certain-h-4-dependent-spouses">https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/employment-authorization-for-certain-h-4-dependent-spouses</a> (last
visited Dec. 4, 2023).
\13\ See 8 CFR 274.12(a) and (c).
---------------------------------------------------------------------------

3. Automatic Extensions of EADs for Renewal Applicants: 8 CFR
274a.13(d)
a. Renewing Employment Authorization and/or EADs
Employment authorization and EADs generally are not valid
indefinitely but instead expire after a specified period of time.\14\
Generally, noncitizens within the eligibility categories listed in 8
CFR 274a.12(c) must obtain a renewal of employment authorization and
their EADs before the expiration date stated on their current EADs, or
they will lose their eligibility to work in the United States (unless,
since obtaining their current EADs, the noncitizens have obtained an
immigration status or belong to a class of individuals with employment
authorization incident to that status or class, or obtain employment
authorization based on another category).\15\ The same holds true for
some classes of noncitizens authorized to work incident to status whose
EAD expiration dates coincide with the termination or expiration of
their underlying immigration status. Other noncitizens authorized to
work incident to status, such as asylees, refugees, and Temporary
Protected Status (TPS) beneficiaries may have immigration status that
confers employment authorization that continues past the expiration
date stated on their EADs. Nevertheless, such noncitizens may wish to
renew their EAD to have acceptable evidence of their continuous
employment authorization for various purposes, such as presenting
evidence of employment authorization and identity to their employers
for completion of the Employment Eligibility Verification (Form I-9)
process. Failure to renew their EADs prior to the expiration date may
result in job loss if such noncitizens do not have or cannot present
alternate acceptable evidence of employment authorization to show their
employers, as employers who continue to employ noncitizens without
employment authorization may be subject to criminal penalties and/or
civil monetary penalties.\16\
---------------------------------------------------------------------------

\14\ See 8 CFR 274a.13(b). But see 8 CFR 274a.14 (setting forth
the bases for termination or revocation of employment
authorization).
\15\ See 8 CFR 274a.14(a)(1)(i).
\16\ The employee must present the employer with acceptable
documents evidencing identity and employment authorization. The
lists of acceptable documents can be found on the second page of the
Form I-9. See USCIS, DHS, Form I-9, ``Employment Eligibility
Verification,'' <a href="https://www.uscis.gov/sites/default/files/document/forms/i-9.pdf">https://www.uscis.gov/sites/default/files/document/forms/i-9.pdf</a> (last visited Feb. 7, 2024). An employer that does not
properly complete Form I-9, which includes reverifying continued
employment authorization, or continues to employ an individual with
knowledge that the individual is not authorized to work, may be
subject to civil money penalties. See USCIS, DHS, ``M-274 Handbook
for Employers,'' ``11.8 Penalties for Prohibited Practices,''
<a href="https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274/110-unlawful-discrimination-and-penalties-for-prohibited-practices/118-penalties-for-prohibited-practices">https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274/110-unlawful-discrimination-and-penalties-for-prohibited-practices/118-penalties-for-prohibited-practices</a> (last
visited Feb. 7, 2024). In addition, an employer who engages in a
``pattern or practice'' of employing unauthorized individuals may
face criminal penalties under 8 U.S.C. 1324a(f). U.S. Immigration
and Customs Enforcement has primary enforcement responsibilities for
enforcement of the civil monetary penalties under Section 274A of
the INA, 8 U.S.C. 1324a and Section 274C of the INA, 8 U.S.C. 1324c.
---------------------------------------------------------------------------

Those seeking to renew previously granted employment authorization
or EADs must file renewal EAD applications with USCIS in accordance
with the form instructions.\17\
---------------------------------------------------------------------------

\17\ See USCIS, DHS, Form I-765, ``Instructions for Application
for Employment Authorization,'' <a href="https://www.uscis.gov/sites/default/files/document/forms/i-765instr.pdf">https://www.uscis.gov/sites/default/files/document/forms/i-765instr.pdf</a> (last visited Feb. 7, 2024). In
reviewing the EAD application, USCIS ensures that the fee was paid,
a fee waiver was granted, or a fee exemption applies.
---------------------------------------------------------------------------

b. Minimizing the Risk of Gaps in Employment Authorization and/or EAD
Validity Through Automatic Extensions
If an eligible noncitizen is not able to obtain renewal of their
employment authorization and/or EAD before it expires, the noncitizen
and the employer could experience adverse consequences. For the
noncitizen, the lack of renewal could cause job loss, gaps in
employment authorization and/or documentation, and loss of income. For
the noncitizen's employer, the disruption may cause instability with
business continuity or other financial harm. Beyond the financial and
economic impact that gaps in employment authorization or proof thereof
create for the noncitizen and the employer, if the noncitizen engages
in unauthorized employment, such activity may render a noncitizen
removable,\18\ render a noncitizen ineligible for future benefits such
as adjustment of status,\19\ and/or subject the employer to civil and/
or criminal penalties.\20\
---------------------------------------------------------------------------

\18\ See, e.g., INA sec. 237(a)(1)(C), 8 U.S.C. 1227(a)(1)(C); 8
CFR 214.1(e).
\19\ See INA sec. 245(c), (k); 8 U.S.C. 1255(c), (k).
\20\ See INA sec. 274A, 8 U.S.C. 1324a.
---------------------------------------------------------------------------

Before 2016, DHS regulations stated that USCIS would ``adjudicate
an application [for an EAD] within 90 days'' from the date USCIS
received the application.\21\ If USCIS did not adjudicate the
application within that timeframe, the applicant was eligible for an
interim document evidencing employment authorization with a validity
period not to exceed 240 days. On November 18, 2016, as part of DHS's
efforts to implement the flexibilities provided to noncitizens and
employers by the American Competitiveness in the Twenty-first Century
Act of 2000 (AC21), as amended, and the American Competitiveness and
Workforce Improvement Act of 1998, DHS published a final regulation
\22\ removing the provision and replacing it with the current 8 CFR
274a.13(d).
---------------------------------------------------------------------------

\21\ See 8 CFR 274a.13(d) (2016).
\22\ See 81 FR 82398 (Nov. 18, 2016) (``AC21 Final Rule''). The
final rule was issued after a proposed rule was published in the
Federal Register. See 80 FR 81899 (Dec. 31, 2015) (``AC21 NPRM'').
---------------------------------------------------------------------------

To prevent gaps in employment authorization and/or documentation
and related consequences for certain renewal applicants,\23\ and in
light of processing times and possible filing

[[Page 24632]]

surges,\24\ DHS changed its regulations at 8 CFR 274a.13(d) such that
under the current provision, and except as otherwise provided by law,
certain categories of renewal applicants receive an automatic extension
of their EADs (and, if applicable, related employment authorization)
for up to 180 days from the expiration date on the EAD.\25\ To receive
the automatic extension, an eligible renewal applicant must meet the
following conditions:
---------------------------------------------------------------------------

\23\ See 80 FR 81899, 81927 (Dec. 31, 2015) (``DHS proposes to
amend its regulations to help prevent gaps in employment
authorization for certain employment-authorized individuals who are
seeking to renew expiring EADs. . . . These provisions would
significantly mitigate the risk of gaps in employment authorization
and required documentation for eligible individuals, thereby
benefitting them and their employers.'').
\24\ See 80 FR 81899, 81927 (Dec. 31, 2015) (``DHS believes that
this time period [of up to 180 days] is reasonable and provides more
than ample time for USCIS to complete the adjudication process based
on USCIS' current 3-month average processing time for Applications
for Employment Authorization.''); id. at 81927 n.77 (``Depending on
any significant surges in filings, however, there may be periods in
which USCIS takes longer than 2 weeks to issue Notices of Action
(Forms I-797C).'').
\25\ 8 CFR 274a.13(d); see also 81 FR 82398, 82455-82463 (Nov.
18, 2016) (AC21 Final Rule).
---------------------------------------------------------------------------

<bullet> The renewal applicant timely files an application to renew
the employment authorization and/or EAD before the EAD expires; \26\
---------------------------------------------------------------------------

\26\ 8 CFR 274a.13(d)(1)(i). TPS beneficiaries must file during
the designated period in the applicable Federal Register notice.
---------------------------------------------------------------------------

<bullet> The renewal EAD application is based on the same
employment authorization category on the front of the expiring EAD or
is for an individual approved for TPS whose EAD was issued pursuant to
8 CFR 274a.12(c)(19); \27\ and
---------------------------------------------------------------------------

\27\ See 8 CFR 274a.13(d)(1)(ii) (exempting individuals approved
for TPS with EADs issued pursuant to 8 CFR 274a.12(c)(19) from the
requirement that the employment authorization category on the face
of the expiring EAD be the same as on the EAD renewal application).
---------------------------------------------------------------------------

<bullet> The renewal applicant's eligibility to apply for
employment authorization continues notwithstanding the expiration of
the EAD and is based on an employment authorization category that does
not require the adjudication of an underlying application or petition
before the adjudication of the renewal application, as may be announced
on the USCIS website.\28\
---------------------------------------------------------------------------

\28\ See 8 CFR 274a.13(d)(1)(iii).
---------------------------------------------------------------------------

The following classes of noncitizens filing to renew an EAD may be
eligible to receive an automatic extension of their employment
authorization and/or EAD for up to 180 days: \29\
---------------------------------------------------------------------------

\29\ See USCIS, DHS, ``Automatic Employment Authorization (EAD)
Extension,'' <a href="https://www.uscis.gov/working-in-the-united-states/information-for-employers-and-employees/automatic-employment-authorization-document-ead-extension">https://www.uscis.gov/working-in-the-united-states/information-for-employers-and-employees/automatic-employment-authorization-document-ead-extension</a> (last visited Feb. 7, 2023).
---------------------------------------------------------------------------

<bullet> Noncitizens admitted as refugees (A03); \30\
---------------------------------------------------------------------------

\30\ See 8 CFR 274a.12(a)(3).
---------------------------------------------------------------------------

<bullet> Noncitizens granted asylum (A05); \31\
---------------------------------------------------------------------------

\31\ See 8 CFR 274a.12(a)(5).
---------------------------------------------------------------------------

<bullet> Noncitizens admitted as parents or dependent children of
noncitizens granted permanent residence under section 101(a)(27)(I) of
the INA, 8 U.S.C. 1101(a)(27)(I) (A07); \32\
---------------------------------------------------------------------------

\32\ See 8 CFR 274a.12(a)(7).
---------------------------------------------------------------------------

<bullet> Noncitizens admitted to the United States as citizens of
the Federated States of Micronesia, the Republic of the Marshall
Islands, or the Republic of Palau pursuant to agreements between the
United States and the former trust territories (A08); \33\
---------------------------------------------------------------------------

\33\ See 8 CFR 274a.12(a)(8).
---------------------------------------------------------------------------

<bullet> Noncitizens granted withholding of deportation or removal
(A10); \34\
---------------------------------------------------------------------------

\34\ See 8 CFR 274a.12(a)(10).
---------------------------------------------------------------------------

<bullet> Noncitizens granted TPS, regardless of the employment
authorization category on their current EADs (A12); \35\
---------------------------------------------------------------------------

\35\ See 8 CFR 274a.12(a)(12) or (c)(19).
---------------------------------------------------------------------------

<bullet> Noncitizen spouses of E-1/2/3 nonimmigrants (Treaty
Trader/Investor/Australian Specialty Worker) (A17); \36\
---------------------------------------------------------------------------

\36\ See INA sec. 214(e)(2), 8 U.S.C. 1184(e)(2).
---------------------------------------------------------------------------

<bullet> Noncitizen spouses of L-1 nonimmigrants (Intracompany
Transferees) (A18); \37\
---------------------------------------------------------------------------

\37\ See INA sec. 214(c)(2)(E), 8 U.S.C. 1184(c)(2)(E).
---------------------------------------------------------------------------

<bullet> Noncitizens who have properly filed applications for TPS
and who have been deemed prima facie eligible for TPS under 8 CFR
244.10(a) and have received an EAD as a ``temporary treatment benefit''
under 8 CFR 244.10(e) and 274a.12(c)(19) (C19); \38\
---------------------------------------------------------------------------

\38\ See 8 CFR 274a.12(c)(19).
---------------------------------------------------------------------------

<bullet> Noncitizens who have properly filed applications for
asylum and withholding of deportation or removal (C08); \39\
---------------------------------------------------------------------------

\39\ See 8 CFR 274a.12(c)(8).
---------------------------------------------------------------------------

<bullet> Noncitizens who have filed applications for adjustment of
status to lawful permanent resident under section 245 of the INA, 8
U.S.C. 1255 (C09); \40\
---------------------------------------------------------------------------

\40\ See 8 CFR 274a.12(c)(9). In certain adjustment of status
cases, if the applicant seeks an EAD and advance parole (by filing
Form I-131, Application for Travel Document), USCIS may issue an
employment authorization card combined with an Advance Parole Card
(Form I-512). This is also referred to as a ``combo card.'' If the
EAD card is combined with the advance parole authorization (the EAD
card has an annotation ``SERVES AS I-512 ADVANCE PAROLE''), any
automatic extension does not apply to the advance parole part of the
combo card.
---------------------------------------------------------------------------

<bullet> Noncitizens who have filed applications for suspension of
deportation under section 244 of the INA (as it existed prior to April
1, 1997), cancellation of removal pursuant to section 240A of the INA,
or special rule cancellation of removal under section 309(f)(1) of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(C10); \41\
---------------------------------------------------------------------------

\41\ See 8 CFR 274a.12(c)(10).
---------------------------------------------------------------------------

<bullet> Noncitizens who have filed applications for creation of
record of lawful admission for permanent residence (C16); \42\
---------------------------------------------------------------------------

\42\ See 8 CFR 274a.12(c)(16).
---------------------------------------------------------------------------

<bullet> Noncitizens who have properly filed legalization
applications pursuant to section 210 of the INA, 8 U.S.C. 1160 (C20);
\43\
---------------------------------------------------------------------------

\43\ See 8 CFR 274a.12(c)(20).
---------------------------------------------------------------------------

<bullet> Noncitizens who have properly filed legalization
applications pursuant to section 245A of the INA, 8 U.S.C. 1255a (C22);
\44\
---------------------------------------------------------------------------

\44\ See 8 CFR 274a.12(c)(22).
---------------------------------------------------------------------------

<bullet> Noncitizens who have filed applications for adjustment of
status pursuant to section 1104 of the Legal Immigration Family Equity
Act (C24); \45\
---------------------------------------------------------------------------

\45\ See 8 CFR 274a.12(c)(24).
---------------------------------------------------------------------------

<bullet> Certain noncitizen spouses (H-4) of H-1B nonimmigrants
with an unexpired Form I-94 showing H-4 nonimmigrant status (C26); \46\
and
---------------------------------------------------------------------------

\46\ See 8 CFR 274a.12(c)(26).
---------------------------------------------------------------------------

<bullet> Noncitizens who are the principal beneficiaries or
derivative children of approved Violence Against Women Act (VAWA) self-
petitioners,\47\ under the employment authorization category
``(c)(31)'' in the form instructions to the EAD application (C31).\48\
---------------------------------------------------------------------------

\47\ Family based immigration generally requires U.S. citizens
and lawful permanent residents to file a petition on behalf of their
noncitizen family members. Some petitioners may misuse this process
to further abuse their noncitizen family members by threatening to
withhold or withdraw sponsorship in order to control, coerce, and
intimidate them. With the passage of VAWA and its subsequent
reauthorizations, Congress provided noncitizens who have been abused
by their U.S. citizen or lawful permanent resident relative the
ability to petition for themselves (self-petition) without the
abuser's knowledge, consent, or participation in the process. The
VAWA provisions allow victims to seek both safety and independence
from their abusers.
\48\ INA sec. 204(a)(1)(D)(i)(II), (IV), (a)(1)(K), 8 U.S.C.
1154(a)(1)(D)(i)(II), (IV), (a)(1)(K).
---------------------------------------------------------------------------

The extension automatically terminates the earlier of up to 180
days after the expiration date of the EAD, or upon issuance of
notification of a decision denying the renewal request.\49\ An EAD that
is expired on its face is considered unexpired when combined with a
Form I-797C receipt notice indicating a timely filing of the
application to renew the EAD.\50\ Therefore, when the expiration date
on the front of the EAD is reached, a noncitizen who is continuing in
their employment with the same employer may present to their employer
the Form I-797C receipt notice for the EAD application to show that
their EAD has been automatically extended as evidence of continued
employment authorization, and the employer must

[[Page 24633]]

update the previously completed Form I-9 to reflect the extended EAD
expiration date based on the automatic extension while the renewal is
pending. For new employment, the automatic extension date is recorded
on the Form I-9 by the employee and the employer in the first instance.
In either case, the reverification of employment authorization or the
EAD occurs when the automatic extension period terminates.\51\
---------------------------------------------------------------------------

\49\ See 8 CFR 274a.13(d)(3).
\50\ See 8 CFR 274a.13(d)(4).
\51\ See USCIS, DHS, ``Completing Supplement B, Reverification
and Rehires (formerly Section 3),'' <a href="https://www.uscis.gov/i-9-central/complete-correct-form-i-9/completing-supplement-b-reverification-and-rehires-formerly-section-3">https://www.uscis.gov/i-9-central/complete-correct-form-i-9/completing-supplement-b-reverification-and-rehires-formerly-section-3</a> (last visited Nov. 3,
2023); see also USCIS, DHS, ``M-274 Handbook for Employers,'' ``5.2
Temporary Increase of Automatic Extension of EADs from 180 Days to
540 Days'' (last visited Dec. 7, 2023).
---------------------------------------------------------------------------

USCIS generally recommends the filing of a renewal EAD application
up to 180 days before the current EAD expires.\52\ If the renewal
application is granted, the employment authorization and/or EAD
generally will be valid as of the date of approval of the application.
If the application is denied, the automatically extended employment
authorization and/or EAD generally is terminated on the day of the
denial.\53\ If the renewal application was timely and properly filed,
but remains pending beyond the 180-day automatic extension period, the
applicant must stop working upon the expiration of the automatically
extended validity period and the employer must remove the employee from
the payroll if the applicant/employee cannot provide other acceptable
evidence of current employment authorization.\54\ As a result, both the
employee and the employer may experience the negative consequences of
gaps in employment authorization and/or EAD validity. Since its
promulgation in 2016, the automatic extension provision at 8 CFR
274a.13(d) has helped to minimize the risk of these negative
consequences for applicants who are otherwise eligible for the
automatic extension and their employers.
---------------------------------------------------------------------------

\52\ See USCIS, DHS, ``I-765, Application for Employment
Authorization,'' <a href="https://www.uscis.gov/i-765">https://www.uscis.gov/i-765</a> (last visited Jan. 19,
2024); USCIS, DHS, ``Employment Authorization Document,'' <a href="https://www.uscis.gov/green-card/green-card-processes-and-procedures/employment-authorization-document">https://www.uscis.gov/green-card/green-card-processes-and-procedures/employment-authorization-document</a> (last visited Dec. 7, 2023); see
also 81 FR at 82456 (``AC21 Final Rule'').
\53\ See 8 CFR 274a.13(d)(3).
\54\ See 8 CFR 274a.2(b)(vii) (reverification provision).
---------------------------------------------------------------------------

C. 2022 Temporary Final Rule

1. Overview
In 2022, processing times for EAD applications had increased due to
operational challenges that were exacerbated by the emergency measures
USCIS employed to maintain its operations through the height of the
COVID-19 pandemic in 2020, combined with a sudden increase in EAD
application filings. The up to 180-day automatic extension period for
renewal EAD applicants' employment authorization and/or EADs was no
longer sufficient to prevent lapses in employment authorization for
these applicants.
To mitigate the impact of these operational challenges, on May 4,
2022, DHS published a TFR titled ``Temporary Increase of the Automatic
Extension Period of Employment Authorization and Documentation for
Certain Renewal Applicants'' (2022 TFR) in the Federal Register.\55\
The rule temporarily amended DHS regulations at 8 CFR 274a.13(d) by
adding a new paragraph 8 CFR 274a.13(d)(5), which lengthened the
automatic extension period provided in that section from up to 180 days
to up to 540 days for those categories described in the TFR, upon
timely filing of an EAD renewal application.\56\ That increase was
available to eligible renewal applicants whose EAD applications were
pending as of May 4, 2022, including those applicants whose employment
authorization had already lapsed following the initial 180-day
extension period, and to eligible applicants who filed a renewal EAD
application during the 540-day period beginning on or after May 4,
2022, and ending October 26, 2023.\57\ On October 27, 2023, the
automatic extension renewal period reverted to 180 days (the automatic
extension period under 8 CFR 274a.13(d)(1)) for eligible renewal EAD
applications filed on or after October 27, 2023.\58\
---------------------------------------------------------------------------

\55\ 87 FR 26614 (May 4, 2022).
\56\ See 8 CFR 274a.13(d); see also 87 FR 26614, 26651 (May 4,
2022).
\57\ See id.
\58\ See 87 FR 26614, 26631 (May 4, 2022).
---------------------------------------------------------------------------

2. Public Comments
In promulgating the 2022 TFR, DHS invited the public to participate
in the rulemaking by submitting comments and written data. In response
to the request for comments, the Department received a total of 190
public comment submissions. Of the 190 submissions, 117 are unique
submissions, 61 are copies of form letters associated with mass mail
campaigns, 6 are duplicate submissions, and 6 are not germane to the
2022 TFR.\59\
---------------------------------------------------------------------------

\59\ The agency has not previously responded to the public
comments received from the 2022 TFR.
---------------------------------------------------------------------------

Of the comments listed above, one submission expressed opposition,
94 submissions expressed support, and 83 expressed a mixed opinion
(e.g., general support with a request for further changes). Many
expressed their appreciation for the rule and commented on the positive
impacts the rule had not only on applicants, their families, and their
support systems, but also on employers and the economy. Many who
supported the rule overall also expressed that DHS should have applied
the rule more broadly by expanding certain aspects of the rule (e.g.,
to cover all classes of noncitizens) or requested revisions to the rule
(e.g., that the effective period of the rule be longer, or that it be
issued as a final rule that would make the increased extension
permanent, not temporary). A comment submitted by an advocacy group
noted that USCIS should make permanent the 540-day automatic extension
because it was unlikely that USCIS would fully eliminate USCIS' backlog
owing to circumstances beyond USCIS' control, including a lack of
funding and adequate staffing. The group added that USCIS could publish
a final rule to make the 540-day automatic extension period permanent
as an appropriate exercise of USCIS' rulemaking authority under the
Administrative Procedure Act (APA) because USCIS requested comments in
connection with the 2022 TFR.\60\ Another advocacy group noted that
making permanent the automatic extension period of 540 days would be
more efficient and promote predictability. Some commenters suggested
that DHS consider alternative regulatory or sub-regulatory actions.
Some addressed other concerns, including clarity, outreach, and
coordination with other departments.
---------------------------------------------------------------------------

\60\ The group cited Little Sisters of the Poor Saints Peter &
Paul Home v. Pennsylvania, 140 S.Ct. 2367, 2384-85 (2020) (holding
that an interim final rule's ``request for comments readily
satisfied the APA notice requirements.'').
---------------------------------------------------------------------------

While DHS reviewed and considered the comments submitted in
response to the 2022 TFR, DHS did not make changes to the 2022 TFR in
response to the comments because DHS considered the rulemaking to be
sufficient at that time to address the issues facing the affected
population of renewal EAD applicants and their U.S. employers. DHS also
considered some comments, such as commenters' suggestions to eliminate
employment authorization for certain groups entirely, to be beyond the
scope of the 2022 TFR, which was intended to be a temporary solution to
the potential disruption facing certain renewal applicants and their
U.S. employers resulting from USCIS

[[Page 24634]]

processing delays. DHS also took various sub-regulatory actions, as
described in section III.B of this preamble, to further address USCIS
processing delays and minimize the risk of potential gaps in employment
authorization and/or documentation.
Lastly, DHS considered the comment in opposition to the rule that
asserted that DHS only provided a cursory justification for the TFR and
questioned DHS's authority to issue the TFR, its consideration of the
impact on U.S. workers, and its justification for claiming good cause
to issue the rule without the notice and comment procedure required
under the APA. DHS disagrees with these various assertions, as the
preamble to the 2022 TFR included a detailed explanation of the legal
authority and justification for the rulemaking, as well as the basis
for foregoing notice and comment based on the good cause exception.\61\
Nevertheless, DHS included additional details in this rule to further
clarify the legal authority for this TFR and has provided additional
explanation regarding the consideration of U.S. workers and potential
impacts, if any, of this TFR on U.S. workers. Specifically, as
explained in this preamble, this TFR is limited to certain renewal EAD
applicants--i.e., those who have already been authorized for
employment--and automatically extending their employment authorization
and/or EAD, so that they may continue to perform the services they are
already doing will have minimal adverse impact, if any, on other U.S.
workers.\62\ Moreover, in providing benefits for renewal applicants and
their U.S. employers, this rule indirectly benefits U.S. workers by
protecting the financial stability and continuity of operations for
affected U.S. employers. DHS also provides a detailed explanation,
including citation to cases cited by the commenter, regarding the APA's
good cause exception and its application to this TFR.
---------------------------------------------------------------------------

\61\ Among other things, the commenter asserted that section
274A(h)(3)(B) of the INA, 8 U.S.C. 1324a(h)(3)(B) was ``merely
definitional'' and did not confer authority on DHS to grant or
extend employment authorization to certain classes of noncitizens
covered by the rule. DHS disagrees with the commenter's assertion.
DHS further discusses the relevant authorities earlier in section II
of this preamble. See also, e.g., Washington Alliance of Technology
Workers v. DHS, 50 F.4th 164, 191-192 (D.C. Cir. 2022) (``What
matters is that section 1324a(h)(3) expressly acknowledges that
employment authorization need not be specifically conferred by
statute; it can also be granted by regulation.'').
\62\ See section V.B.3.d., Module D. Other Impacts. As
explained, this rule extends current employment authorization for
individuals who are at risk of losing such authorization solely
because of USCIS processing delays; it does not grant new work
authorization to additional persons. See id. According to the most
recent data (applicable to October 2023), the U.S. labor force
stands at 167,728,000. The maximum population of about 824,000
represents 0.50 percent of the national labor force, approximately
554,000 of which would potentially not lapse as a result of the
action being taken. See id. Additionally, according to the Bureau of
Labor Statistics data, and as of December 2023, there were 0.7
unemployed persons per job opening. See U.S. Department of Labor,
U.S. Bureau of Labor Statistics, ``Number of unemployed persons per
job opening, seasonally adjusted,'' <a href="https://www.bls.gov/charts/job-openings-and-labor-turnover/unemp-per-job-opening.htm">https://www.bls.gov/charts/job-openings-and-labor-turnover/unemp-per-job-opening.htm</a> (last visited
Feb. 6, 2024). Thus, data indicates that there are currently more
jobs than available employees. As such, DHS believes, based on the
nature of this rulemaking as well as current economic conditions,
that the hypothetical possibility of some U.S. workers replacing
workers who would temporarily lose employment authorization in the
absence of this rulemaking is not a compelling reason to allow
widespread losses of employment authorization due to USCIS
processing delays.
---------------------------------------------------------------------------

All comments submitted in response to the 2022 TFR have been
reviewed and considered by DHS in the development of this 2024 TFR.
3. Impact of the 2022 TFR
The 2022 TFR proved to be very successful at minimizing disruption
to renewal EAD applicants and their U.S. employers that would have
otherwise resulted from USCIS processing delays. Not only did the 2022
TFR immediately restore employment authorization for approximately
70,000 renewal EAD applicants who were already beyond the up to 180-day
automatic extension period when the 2022 TFR published, but the 2022
TFR also helped nearly 280,000 renewal EAD applicants avoid a gap in
employment authorization or employment authorization documentation
based on applications filed on or after May 4, 2022, and on or before
October 26, 2023.

III. Purpose of This Temporary Final Rule

DHS has determined that the up to 180-day automatic extension under
8 CFR 274a.13(d) is currently not enough time for the growing number of
renewal EAD applicants. Without this TFR, hundreds of thousands of
renewal EAD applications will remain pending beyond the 180-day
automatic extension period, resulting in applicants losing employment
authorization and/or EAD validity. The grave situation that many
renewal applicants (and their families) and their employers will
imminently or soon face without this action is not the result of the
applicants' actions but is instead the result of several converging
factors affecting USCIS operations. These factors, as described in
detail later in this section, have resulted in a significant increase
in USCIS processing times for several categories of renewal EAD
applications.
Based on these factors, DHS has determined that the 180-day
automatic extension provision is currently insufficient to protect
applicants, their families, and their employers as was originally
intended. If USCIS does not take immediate action, approximately
800,000 EAD renewal applicants will be in danger of experiencing a gap
in employment authorization and/or EAD validity in the approximately 2-
year period beginning May 2024.\63\ Such widescale lapses in employment
authorization and EAD validity would result in substantial and
unnecessary harm to noncitizens who timely filed for extensions of
employment authorization, their families, their employers, and the
public at large. Approximately 80 percent of those renewal applications
will be pending asylum applicant (C08) EADs. The remaining 20 percent
will primarily be adjustment applicant (C09) and cancellation of
removal (C10) EADs.\64\ Therefore, to avert gaps in employment
authorization and/or EAD validity for certain renewal EAD applicants
and the harmful effects caused by such lapses, DHS is temporarily
amending existing DHS regulations to increase the automatic extension
period from to up to 540 days from the expiration date stated on their
EADs.
---------------------------------------------------------------------------

\63\ See section V.B.2. Table 6 of the Regulatory Impact
Analysis.
\64\ See section V.B.2. Table 6 of the Regulatory Impact
Analysis for how the renewal categories will be affected under this
TFR.
---------------------------------------------------------------------------

DHS is applying this rule to all renewal EAD application categories
eligible for automatic extension pursuant to 8 CFR 274a.13(d), not just
to C08, C09, and C10 EAD renewal categories, even though some of these
categories currently experience processing times that do not raise a
risk of the applicant experiencing a lapse in employment authorization
or documentation. While nearly all renewal applications eligible for
automatic extension fall within the C08, C09, and C10 categories, DHS
has made this decision because it has determined that it would not be
operationally practical for USCIS to implement a different approach.
Making distinctions among categories would cause confusion among
employers and employees; and backlogs and processing times may yet
increase for these other categories.

[[Page 24635]]

A. Sudden Increase in EAD Applications and Associated Operational
Challenges

1. Comparing Fiscal Year (FY) 2023 Receipts to FY 2022 Receipts
The most recent and significant contributing factor to the severe
backlog and increased processing times for renewal EAD applications is
the substantial increase in the number of initial EAD applications
based on pending asylum applications (C08) that began in March 2023.
This surge and sustained increase in receipts during FY 2023 \65\
substantially increased processing times for renewal EAD applications
because USCIS was required to prioritize adjudication of certain
initial EAD applications over other applications such as renewal EAD
applications.\66\
---------------------------------------------------------------------------

\65\ For the beginning of FY 2023 until March 2023, USCIS
averaged 160,000 initial EAD application receipts per month. In
March 2023, initial EAD application receipts spiked to over 250,000.
For the remainder of FY 2023, USCIS averaged 220,000 initial EAD
application receipts per month. The EAD category with the largest
growth of initial receipts in the second half of FY 2023 was C08
(pending asylum applications).
\66\ See section III.A.2.a of this preamble for more information
on this requirement to prioritize initial EAD applications in the
C08 category (pending asylum applications).
---------------------------------------------------------------------------

As shown in Tables 1A. through C. below, in FY 2023, USCIS received
approximately 3.49 million EAD applications, which was 50 percent
higher than the volume received in FY 2022 (approximately 2.33
million). USCIS received approximately 2.37 million initial EAD
applications in FY 2023, which was 77 percent higher than the volume of
initial EAD applications received in FY 2022 (approximately 1.34
million). USCIS received approximately 1.12 million renewal EAD
applications in FY 2023, which was 13 percent higher than the volume
received in FY 2022 (approximately 990,000).

Table 1A--Initial and Renewal EAD Applications
------------------------------------------------------------------------
EAD
Fiscal year applications Difference
------------------------------------------------------------------------
2022..................... 2,330,000
2023..................... 3,490,000 50 percent higher than 2022.
------------------------------------------------------------------------

Table 1B--Initial EAD Applications
------------------------------------------------------------------------
EAD
Fiscal year applications Difference
------------------------------------------------------------------------
2022..................... 1,340,000
2023..................... 2,370,000 77 percent higher than 2022.
------------------------------------------------------------------------

Table 1C--Renewal EAD Applications
------------------------------------------------------------------------
EAD
Fiscal year applications Difference
------------------------------------------------------------------------
2022..................... 990,000
2023..................... 1,120,000 13 percent higher than 2022.
------------------------------------------------------------------------

While overall EAD application filings increased in FY 2023, USCIS
received a substantial increase in filings in the second half of the
fiscal year. USCIS received a spike of nearly 100,000 EAD application
filings in March 2023, resulting in a monthly total well over 300,000.
However, USCIS received approximately 61,000 fewer EAD applications the
following month in April 2023, underscoring the dynamic and variable
nature of EAD filings at that time.
As shown in Figure 1 below, the primary drivers in the growth of
EAD applications in FY 2023 (both initials and renewals) were EAD
applications based on pending asylum applications (C08), TPS (A12/C19),
and parole (C11).

Figure 1. I-765 Receipts by Major Eligibility Category
[GRAPHIC] [TIFF OMITTED] TR08AP24.000

The higher volume receipts, particularly initial C08 EAD
applications, led to increased processing times for renewal EAD
applications because, as explained in section III.A.2.a., USCIS had to
prioritize adjudicative resources on C08 initial EAD applications to
comply with court-ordered deadlines for processing these case types and
to address other priorities.\67\ Consequently, the efforts USCIS
undertook to improve its

[[Page 24636]]

processing times for renewal EAD applications--including increasing its
staffing levels--were insufficient to keep up with the substantial and
unanticipated increase in EAD application filings.
---------------------------------------------------------------------------

\67\ See section III.A.2.a of this preamble for more information
on the court-imposed requirement to prioritize initial EAD
applications in the C08 category. For more information on EAD
application processing times resulting from increased filings, see
section III.C of this preamble.
---------------------------------------------------------------------------

To address the unexpectedly high volume of incoming receipts, USCIS
increased officer hours expended on initial C08 EAD applications from
116,000 in FY 2022 to 361,000 in FY 2023, an increase of approximately
245,000 hours. The increase in officer hours was comprised of straight
time \68\ (95,000 hours in FY 2022 to 268,000 hours in FY 2023, an
increase of 173,000 hours or 282 percent) and overtime (21,000 hours in
FY 2022 to 93,000 hours in FY 2023, an increase of 72,000 hours or 443
percent). To achieve this increase in hours, USCIS reassigned officers
from other workloads and hired new staff.
---------------------------------------------------------------------------

\68\ Straight time is the regular wage an employee receives for
working a regular schedule and does not include overtime pay.
---------------------------------------------------------------------------

For staff transfers from other product lines to initial C08 EAD
applications, USCIS first utilized staff that previously worked on C08
renewals because they were already trained on C08 EAD processing. When
this was insufficient to meet the court-ordered 30-day processing
requirement for C08 EAD initial applications, USCIS reassigned
personnel from other product lines and trained them to work on C08 EAD
processing.
This court-ordered prioritization of initial C08 EAD applications
over other applications has negatively affected renewal EAD processing
times because USCIS was unable to dedicate sufficient officer hours to
keep pace with renewal EAD applications. To help address this issue,
USCIS increased officer hours from 92,000 in FY 2022 to 113,000 in FY
2023 for renewal C08 EAD applications. Despite this increase of 21,000
officer hours, USCIS has been unable to keep up with its volume of
renewal C08 EAD applications. As of February 2024, the 80th percentile
processing time \69\ for renewal C08 EAD applications was 16 months.
USCIS is also behind in its target for adjudications of other automatic
extension categories, including C09 (pending adjustment of status
application, 7.5 months), C10 (suspension of deportation, 16.3 months),
A12 (TPS, 11.2 months), A5 (asylee, 4.8 months), and A10 (granted
withholding of deportation or removal, 6.6 months).
---------------------------------------------------------------------------

\69\ The processing times displayed on the USCIS website is the
amount of time it took USCIS to complete 80 percent of adjudicated
cases over the last 6 months. ``Processing time is defined as the
number of days (or months) that have elapsed between the date USCIS
received an application, petition, or request and the date USCIS
completed the application, petition, or request (that is, approved
or denied it) in a given six-month period.'' See USCIS, DHS, ``Case
Processing Times,'' <a href="https://egov.uscis.gov/processing-times/more-info">https://egov.uscis.gov/processing-times/more-info</a> (last visited January 19, 2024).
---------------------------------------------------------------------------

As is explained in this preamble, EAD application processing times
and the number of pending EAD applications have not sufficiently
improved, and despite USCIS' multiple operational and sub-regulatory
efforts to reduce the backlog, ongoing and dynamic circumstances, which
are outside of USCIS' control, have prevented USCIS from keeping up
with the adjudicatory workload.
USCIS has continued to closely monitor the automatic-extension
eligible renewal EAD caseloads and processing times. Despite USCIS'
best efforts, such improvements have not yet provided the desired
impact. Table 2 shows that the number of pending EAD applications has
not materially improved since the end of FY 2023. The total number of
pending EAD applications at the end of February of 2024 is
approximately 1.40 million applications, which continues to pose a
challenge for USCIS and also impacts processing times for renewal EAD
applications eligible for automatic extensions because of the limited
amount of USCIS resources that can be allocated to those case types.
The total number of pending auto-extension EAD renewal applications at
the end of February 2024 was approximately 439,000. While some progress
has been made in addressing the backlog, the progress has not yet
achieved sufficient gains to reduce EAD renewal processing times and
avoid imminent and near-term lapses in employment authorization for EAD
renewal applicants.

Table 2--Pending EAD Applications by Month
------------------------------------------------------------------------
Auto-
Month All EAD extension
applications renewals
------------------------------------------------------------------------
Sep 2023...................................... 1,490,000 534,000
Oct 2023...................................... 1,510,000 504,000
Nov 2023...................................... 1,500,000 474,000
Dec 2023...................................... 1,470,000 448,000
Jan 2024...................................... 1,440,000 457,000
Feb 2024...................................... 1,400,000 439,000
------------------------------------------------------------------------
Source: DHS, USCIS, OPQ, CLAIMS3, ELIS, retrieved March 15, 2024.

2. Effect of Operational Challenges on EAD Application Adjudications
a. Operational Challenges Associated With Initial EAD Application
Filings by Pending Asylum Applicants (C08)
The operational challenges associated with the recent surge in EAD
applications has primarily \70\ been driven by initial EAD applications
by individuals with pending asylum applications (C08).\71\ In FY 2022,
USCIS received 266,036 initial C08 applications. In FY 2023, receipts
dramatically increased to 802,284. The increase in initial C08 EAD
applications placed a substantial strain on USCIS' adjudicative
resources due to the high volume of cases and, as discussed in this
section, the stringent 30-day timeline in which USCIS must, by
regulation and court order, adjudicate these applications.
---------------------------------------------------------------------------

\70\ Other factors related to EAD processing have affected
USCIS' workload and personnel, such as processing EADs for
noncitizens who were paroled after scheduling an appointment through
CBP One or through the Cuban, Haitian, Nicaraguan, and Venezuelan
parole processes. However, these processes have not significantly
compounded the pressures on EAD renewal processing, and they do not
alter USCIS' determination that the primary factor leading to longer
processing times for renewal EAD applications is the sudden and
sustained increase in initial applications for EADs in the C08
category, which must be adjudicated within 30 days. See section
III.A.2 of this preamble for a detailed discussion of the
operational effects of the C08 initial applications.
\71\ Currently, pending asylum applicants may not be granted
employment authorization until 180 days after the filing of the
application for asylum. INA sec. 208(d)(2), 8 U.S.C. 1158(d)(2).
Pending asylum applicants requesting employment authorization under
the C08 category may file their EAD applications once the asylum
application has been pending for 150 days. 8 CFR 208.7(a)(1).
---------------------------------------------------------------------------

In addition to increased EAD filings, EAD processing overall also
has been affected by litigation regarding two rules, published in 2020,
that amended the regulations governing EAD applications associated with
asylum applications.
The regulation at 8 CFR 208.7(a)(1), which was originally
promulgated in 1994,\72\ requires USCIS to adjudicate initial C08 EAD
applications within 30 days of filing.\73\ However, on June 22, 2020,
DHS published a final rule titled ``Removal of 30-day Processing
Provision for Asylum Applicant-Related Form I-765 Employment
Authorization Applications'', which amended 8 CFR 208.7(a)(1) to remove
the 30-day

[[Page 24637]]

processing requirement.\74\ Several days later, DHS published another
final rule titled ``Asylum Application, Interview, and Employment
Authorization for Applicants,'' which made further changes to DHS's
regulations governing eligibility for employment authorization based on
a pending asylum application, including extending the waiting period
before asylum applicants could apply for an EAD from 180 days to 365
days (not including delays caused or requested by an applicant) and
imposing other restrictions and requirements.\75\
---------------------------------------------------------------------------

\72\ See 59 FR 62284 (Dec. 5, 1994).
\73\ On July 26, 2018, in Rosario v. USCIS, the U.S. District
Court for the Western District of Washington granted summary
judgment against the government and issued an order requiring USCIS
to comply with the 30-day regulatory timeline at 8 CFR 208.7. See
365 F. Supp. 3d 1156 (W.D. Wash. 2018).
\74\ See 85 FR 37502 (June 22, 2020). DHS issued this final rule
after having issued a proposed rule, seeking public comments. See 84
FR 47148 (Sept. 9, 2019).
\75\ See 85 FR 38532 (June 26, 2020). This final rule was
promulgated after publishing a notice of proposed rulemaking. See 84
FR 62374 (Nov. 14, 2019).
---------------------------------------------------------------------------

Litigation followed the publication of these two rules (``2020
Asylum EAD Rules''), including CASA \76\ in the U.S. District Court for
the District of Maryland, and Asylumworks \77\ in the U.S. District
Court for the District of Columbia. On September 11, 2020, the court in
CASA imposed a preliminary injunction requiring that USCIS not apply
the 2020 Asylum EAD Rules to members of CASA and Asylum Seeker Advocacy
Project organizations. On February 7, 2022, the U.S. District Court for
the District of Columbia issued an order in Asylumworks vacating the
2020 Asylum EAD Rules in their entirety.\78\ On September 22, 2022, DHS
published a final rule titled ``Asylum Application, and Employment
Authorization for Applicants; Implementation of Vacatur'' \79\ that
removed the changes made by the 2020 Asylum EAD Rules, restoring the
regulatory text that predated the 2020 Asylum EAD Rules and thus
implementing the court order in Asylumworks.
---------------------------------------------------------------------------

\76\ See CASA de Maryland, Inc. v. Wolf, 486 F. Supp. 3d 928 (D.
Md. 2020).
\77\ See Asylumworks v. Mayorkas, 590 F. Supp. 3d 11 (D.D.C.
Feb. 7, 2022).
\78\ Asylumworks v. Mayorkas, 590 F. Supp. 3d 11 (D.D.C. Feb. 7,
2022) (``Asylumworks vacatur''). The vacatur decision in Asylumworks
effectively mooted the CASA case. The CASA court eventually
acknowledged the case had become moot on May 18, 2023, when it
granted the government's motion to dismiss. See CASA de Maryland,
Inc. v. Mayorkas, No. 8:20-CV-2118-PX, 2023 WL 3547497 (D. Md. May
18, 2023).
\79\ See 87 FR 57795 (Sept. 22, 2022).
---------------------------------------------------------------------------

As a result of the Asylumworks court order, since February 7, 2022,
USCIS has been required to process initial EAD applications for all
asylum applicants within 30 days of filing. While the court order
required a return to a regulatory requirement that existed until 2020,
the burden created by the court's order was significant and continues
to affect overall EAD processing today.
Following the Asylumworks vacatur, at the end of February 2022,
there were 93,639 pending cases to which the 30-day processing
requirement applied. To address the backlog of cases and comply with
the court's order, USCIS worked to increase resources for the entire
initial C08 EAD application workload, including adding staff (pulling
from other workloads as well as new hires) and offering overtime.\80\
---------------------------------------------------------------------------

\80\ Receipts of initial C08 EAD applications for the first half
of FY 2022 averaged 16,900 per month, and for the second half of FY
2022, 27,500 receipts per month. Average monthly receipts of initial
C08 EAD applications for the first half of FY 2023 was 55,000, and
it increased to 78,700 in the second half of FY 2023.
---------------------------------------------------------------------------

In particular, USCIS has added staff dedicated to the adjudication
of C08 initial EAD applications by reassigning and training experienced
officers from other portfolios and assigning new hires to this
portfolio. In addition, USCIS offered overtime to all officers working
C08 initial EAD applications.\81\ As a result of these efforts, USCIS
maintained higher levels of completions than have occurred since 2017,
resulting in the significant reduction of total C08 initial EAD
applications pending over 30 days. USCIS expended 68,000 hours on C08
initial EAD applications in FY 2021, 116,000 hours in FY 2022, and
361,000 hours in FY 2023. USCIS expended 245,000 more officer hours in
FY 2023 than FY 2022 adjudicating C08 initial EAD applications. Some of
these hours could have gone to other workloads, including renewal EAD
applications.
---------------------------------------------------------------------------

\81\ From October 2020 to February 2022, USCIS officers
collectively averaged 250 overtime hours per month processing C08
initial EAD applications. From March 2022 until February 2023, USCIS
officers collectively averaged 3,800 overtime hours per month on C08
initial EAD applications. From March 2023 until October 2023, USCIS
officers collectively averaged 9,900 overtime hours per month on C08
initial EAD applications.
---------------------------------------------------------------------------

b. Impact of the Significant Increase in Referrals to USCIS for
Credible Fear Assessments
As DHS noted in 2023, economic and political instability around the
world has been fueling high levels of global migration, including in
the Western Hemisphere.\82\ For example, in December 2022, U.S. Border
Patrol (USBP) \83\ encountered approximately 222,000 noncitizens
between ports of entry, then second only to May 2022 (approximately
224,000 encounters). Daily encounters averaged 7,152 in that month (as
compared to the daily average of 1,265 in the immediate pre-pandemic
period, 2014-2019).\84\ The Department estimated, based on April 2023
projections and planning models, that the number of daily encounters
could rise to approximately 11,000 per day.\85\ The Department
announced sweeping new measures to address the anticipated further
increase in migration, including a new rule that introduced a
rebuttable presumption of asylum ineligibility for certain noncitizens
\86\ and a surge in resources to expeditiously process and remove
individuals who arrive at the southwest border without a lawful basis
to remain.\87\
---------------------------------------------------------------------------

\82\ See 88 FR 31314, 31314-31315 (May 16, 2023). Analysis by
the DHS Office of Immigration Statistics (OIS) found that even while
the Centers for Disease Control and Prevention's (CDC) Title 42
public health Order had been in place, encounters with noncitizens
attempting to cross the United States' southwest border without
authorization has been high. See 88 FR at 31315. The ``Title 42
public health Order'' issued by CDC under 42 U.S.C. 265, was in
effect from March 20, 2020 until May 11, 2023 and suspended the
introduction into the United States of certain persons who, due to
the existence of COVID-19 in countries or places from which persons
were traveling, created a serious danger of the introduction of such
disease into the United States. See 85 FR 17060 (Mar. 26, 2020). The
processes usually applicable under the INA, Title 8 of the U.S.C.,
generally did not apply to cover noncitizens while the Order was in
effect.
\83\ USBP is the component of U.S. Customs and Border Protection
(CBP) within DHS responsible for U.S. border security between ports
of entry. USBP's mission is to detect and prevent the illegal entry
of individuals into the United States. See CBP, DHS, ``Along the
U.S. Borders,'' <a href="https://www.cbp.gov/border-security/along-us-borders">https://www.cbp.gov/border-security/along-us-borders</a>
(last visited Mar. 7, 2024).
\84\ See 88 FR 31314, 31315 (May 16, 2023).
\85\ See 88 FR 31314, 31316 (May 16, 2023).
\86\ See 88 FR 31314, 31314 (May 16, 2023).
\87\ See DHS, Fact Sheet: U.S. Government Announces Sweeping New
Actions to Manage Regional Migration (Apr. 27, 2023), <a href="https://www.dhs.gov/news/2023/04/27/fact-sheet-us-government-announces-sweeping-new-actions-manage-regional-migration">https://www.dhs.gov/news/2023/04/27/fact-sheet-us-government-announces-sweeping-new-actions-manage-regional-migration</a> (last visited Mar.
11, 2024).
---------------------------------------------------------------------------

These new measures have helped DHS to better manage migratory
flows, but require USCIS resources to implement in the face of
historically high levels of encounters at the southwest land border
between the ports of entry. Although such encounters dropped between
April 2023 (183,921) and May 2023 (171,382), and dropped again in June
2023 (99,538), encounters began to increase in July 2023 (132,642) and
then remained higher than May 2023 levels through December 2023
(249,735), before falling again in January 2024 (176,205).\88\ With
this increase in encounters at the southwest border, there has also
been an increase in referrals to USCIS for credible fear screenings
\89\ of individuals

[[Page 24638]]

who express an intention to apply for asylum or who express a fear of
persecution, torture, or returning to their home country. In FY 2023,
USCIS received a historic high of 149,700 credible fear referrals.\90\
---------------------------------------------------------------------------

\88\ See Southwest Land Border Encounters at <a href="https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters">https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters</a> (last
visited Mar. 7, 2024).
\89\ Under the INA, certain noncitizens arriving in the United
States who are found to be inadmissible under either section
212(a)(6)(C) of the INA, 8 U.S.C. 1182(a)(6)(C) (misrepresentation)
or section 212(a)(7) of the INA, 8 U.S.C. 1182(a)(7) (for failure to
meet documentation requirements for admission), may be removed from
the United States without a further hearing or review (expedited
removal) unless the noncitizen indicates either an intention to
apply for asylum under section 208 of the INA, 8 U.S.C. 1158, or
expresses a fear of persecution or torture. See INA sec.
235(b)(1)(A)(i), (iii), 8 U.S.C. 1225(b)(1)(A)(i), (iii); 8 CFR
235.3(b)(4). If such a noncitizen indicates an intention to apply
for asylum or expresses a fear of persecution, torture, or of
returning to their home country, the immigration officer refers the
noncitizen for an interview with a USCIS asylum officer, who will
determine if the noncitizen has a credible fear of persecution in
his or her country of nationality or last habitual residence. See
INA sec. 235(b)(1)(A), 8 U.S.C. 1225(b)(1)(A). If the USCIS asylum
officer determines the noncitizen has a credible fear of persecution
or torture, the noncitizen may apply for asylum and remain in the
United States until a final determination is made on the asylum
application by an immigration judge or, in some cases, by an asylum
officer. See generally INA sec. 235(b), 240, 8 U.S.C. 1225(b),
1229a; see also 8 CFR 208.2, 208.30 and 1208.30. The HSA grants to
DHS the authority to adjudicate affirmative asylum applications--
i.e., applications for asylum filed with DHS for individuals not in
removal proceedings--and authority to conduct credible fear
interviews, make credible fear determinations in the context of
expedited removal, and establish procedures for further
consideration of asylum applications after an individual is found to
have a credible fear. See 6 U.S.C. 271(b)(3); INA sec. 235(b)(1)(B),
8 U.S.C. 1225(b)(1)(B).
\90\ See USCIS, DHS, Asylum Division Monthly Statistics Report,
Fiscal year 2023, October 2022 to September 2023, <a href="https://www.uscis.gov/sites/default/files/document/data/asylumfiscalyear2023todatestats_230930.xlsx">https://www.uscis.gov/sites/default/files/document/data/asylumfiscalyear2023todatestats_230930.xlsx</a> (last visited Nov. 27,
2023).
---------------------------------------------------------------------------

The Directorate at USCIS that processes these claims, the Refugee,
Asylum and International Operations Directorate (``RAIO''), had
insufficient staff to accommodate such increased volume. To address the
impact of these high numbers of credible fear referrals from the
southwest border on existing asylum and credible fear procedures, USCIS
has been detailing USCIS personnel, including officers who adjudicate
EAD applications, to the USCIS RAIO directorate for up to 120 days to
conduct credible fear screenings.\91\ However, because only an
immigration officer who is also an ``asylum officer,'' as defined at
section 235(b)(1)(E) of the Act, 8 U.S.C. 1225(b)(1)(E), may conduct
credible fear screenings, USCIS had to ensure that any non-asylum
officers received the necessary asylum officer training before they
could start on the detail.\92\ Thus, many USCIS detailees were required
to take a full-time asylum officer training course lasting several
weeks. Having had to divert adjudicatory resources by having
adjudicators detailed to the credible fear process created a
significant operational strain in the renewal EAD adjudication
resulting in an increase of processing times.\93\ Due to the ongoing
need for additional asylum officers and credible fear interviews, USCIS
continues to solicit for detailees across all USCIS components.
---------------------------------------------------------------------------

\91\ See DHS, ``Fact Sheet: U.S. Government Announces Sweeping
New Actions to Manage Regional Migration,'' <a href="https://www.dhs.gov/news/2023/04/27/fact-sheet-us-government-announces-sweeping-new-actions-manage-regional-migration">https://www.dhs.gov/news/2023/04/27/fact-sheet-us-government-announces-sweeping-new-actions-manage-regional-migration</a> (last updated May 11, 2023) (``DHS
and the Department of Justice (DOJ) are also surging asylum officers
and immigration judges, respectively, to complete immigration
proceedings at the border more quickly.''). Approximately 157
immigration officer FTEs participated in a credible fear detail in
FY 2023, and approximately 212 FTEs participated from May 2023 to
January 2024.
\92\ See INA sec. 235(b)(1)(B)(i) and (b)(1)(e), 8 U.S.C.
1225(b)(1)(B)(i) and (b)(1)(e); 8 CFR 208.1(b). As required by law,
asylum officers receive special training, including training on
international human rights law, non-adversarial interview
techniques, and country conditions information.
\93\ On October 20, 2023, the Administration requested $755
million in supplemental funding from Congress for USCIS to hire
additional officers to adjudicate an increase in asylum filings and
address the backlog in processing employment authorization
applications and immigration benefit requests. See Letter regarding
critical national security funding needs for FY 2024, <a href="https://www.whitehouse.gov/wp-content/uploads/2023/10/Letter-regarding-critical-national-security-funding-needs-for-FY-2024.pdf">https://www.whitehouse.gov/wp-content/uploads/2023/10/Letter-regarding-critical-national-security-funding-needs-for-FY-2024.pdf</a>. Congress
has not fulfilled that request as of March 11, 2024.
---------------------------------------------------------------------------

Positive credible fear determinations also create a downstream
increase in applications for employment authorization, as these
individuals may apply for asylum before the Executive Office for
Immigration Review, which renders them eligible to apply for employment
authorization after the asylum application has been pending for 150
days.
c. Impact of Affirmative and Defensive Asylum Filing Surges and
Backlogs and the Effect on C08 Renewals
As noted above, the recent surge in EAD applications has primarily
been driven by initial EAD applications filed by individuals with
pending asylum applications (C08). USCIS received historic levels of
affirmative asylum applications in FY 2022 and FY 2023. In FY 2022,
USCIS received more than 240,600 affirmative asylum applications.\94\
In FY 2023, USCIS received more than 454,300 affirmative asylum
applications.\95\ Despite efforts to adjudicate these pending
applications, backlogs for both affirmative (filed with USCIS) and
defensive (filed with the Executive Office for Immigration Review
(EOIR)) asylum applications have grown. Specifically, as of September
30, 2023, over 1.062 million affirmative asylum applications were
pending with USCIS and 937,000 total asylum applications were pending
before EOIR, respectively. Owing to these backlogs, USCIS has seen an
increase in C08 renewal EAD applications. Because initial C08 EADs
issued prior to September 2023 were valid for a period of 2 years, the
backlog in asylum applications at USCIS and EOIR is projected to result
in over 770,000 C08 renewal EAD application filings during the
effective period of this TFR.\96\
---------------------------------------------------------------------------

\94\ See USCIS, DHS, Asylum Division Monthly Statistics Report.
Fiscal Year 2022. October 2021 to September 2022, <a href="https://www.uscis.gov/sites/default/files/document/data/AsylumFiscalYear2022ToDateStats.xlsx">https://www.uscis.gov/sites/default/files/document/data/AsylumFiscalYear2022ToDateStats.xlsx</a> (last visited Nov. 27, 2023).
\95\ See USCIS, DHS, Asylum Division Monthly Statistics Report.
Fiscal year 2023. October 2022 to September 2023, <a href="https://www.uscis.gov/sites/default/files/document/data/asylumfiscalyear2023todatestats_230930.xlsx">https://www.uscis.gov/sites/default/files/document/data/asylumfiscalyear2023todatestats_230930.xlsx</a>, (last visited Nov. 27,
2023).
\96\ See TFR Modeling Methodology.
---------------------------------------------------------------------------

3. Additional Designations for Temporary Protected Status
Over the course of FY 2022 and FY 2023, the Secretary of Homeland
Security, following consideration of relevant country conditions and
other appropriate factors and in consultation with interagency
partners, designated, redesignated, and extended the designation of
several foreign countries for TPS under section 244 of the INA, 8
U.S.C. 1254a. There are currently 16 foreign countries with active TPS
designations.\97\ TPS provides temporary protection from removal and
employment authorization to eligible nationals of designated countries
present in the United States. The Secretary may designate a country for
TPS if the conditions in a country prevent the country's nationals from
returning safely due to ongoing armed conflict or extraordinary and
temporary conditions or render the country temporarily unable to handle
adequately the return of its nationals due to an environmental disaster
that has resulted in a substantial but temporary disruption in living
conditions.\98\ USCIS is the designated entity within DHS to administer
the TPS program.
---------------------------------------------------------------------------

\97\ For a list of designated countries, see <a href="https://www.uscis.gov/humanitarian/temporary-protected-status">https://www.uscis.gov/humanitarian/temporary-protected-status</a> (last visited
Nov. 7, 2023).
\98\ See INA secs. 244(b)(1)(A)-(C); 8 U.S.C. 1254a(b)(1)(A)-
(C).
---------------------------------------------------------------------------

Once a country is designated, eligible nationals of that country
may apply for TPS by filing Form I-821, Application for Temporary
Protected Status (TPS application). Applicants may also request an EAD
by filing an EAD application with their TPS application, while their
TPS application is pending

[[Page 24639]]

or after their TPS application is approved.\99\ TPS-based EADs fall
under the A12 (TPS previously granted) and C19 (initial TPS application
pending) categories. Individuals granted TPS may re-register for TPS
and apply to renew their EADs as part of any announced re-registration
period if the country continues to be designated for TPS.\100\
---------------------------------------------------------------------------

\99\ See INA sec. 244(a)(4), 8 U.S.C. 1254a(a)(4); 8 CFR 244.5,
274a.12(c)(19).
\100\ See INA sec. 244(a)(1)(B), 8 U.S.C. 1254a(a)(1)(B); 8 CFR
244.12, 274a.12(a)(12).
---------------------------------------------------------------------------

Over the course of FY 2022 and FY 2023, the Secretary newly
designated five countries for TPS: Afghanistan,\101\ Cameroon,\102\
Ethiopia,\103\ Sudan,\104\ and Ukraine \105\ because of humanitarian
concerns and instability in these countries. These initial designations
allowed nationals of these countries who were already in the United
States to remain in the United States and apply for EADs. During this
same period, the Secretary extended and redesignated for TPS
Burma,\106\ Haiti,\107\ Syria,\108\ Somalia,\109\ South Sudan,\110\ and
Yemen,\111\ which allowed existing TPS beneficiaries to re-register for
TPS and apply for renewal of their EADs, and allowed additional
nationals present in the United States from these countries to apply
for TPS to remain in the United States and apply for EADs. The
Secretary also extended the TPS designation for El Salvador,\112\
Honduras,\113\ Nicaragua,\114\ Nepal,\115\ and Venezuela,\116\ thereby
allowing existing TPS beneficiaries to re-register for TPS and apply
for renewal of their EADs.
---------------------------------------------------------------------------

\101\ 87 FR 30976 (May 20, 2022).
\102\ 87 FR 34706 (June 7, 2022).
\103\ 87 FR 76074 (Dec. 12, 2022).
\104\ 87 FR 23202 (Apr. 19, 2022).
\105\ 87 FR 23211 (Apr. 19, 2022).
\106\ 87 FR 58515 (Sept. 27, 2022).
\107\ 88 FR 5022 (Jan. 26, 2023).
\108\ 87 FR 46982 (Aug. 1, 2022).
\109\ 88 FR 15434 (Mar. 13, 2023).
\110\ 88 FR 60971 (Sept. 6, 2023).
\111\ 88 FR 94 (Jan. 3, 2023).
\112\ 88 FR 40282 (June 21, 2023).
\113\ 88 FR 40304 (June 21, 2023).
\114\ 88 FR 40294 (June 21, 2023).
\115\ 88 FR 40317 (June 21, 2023).
\116\ 87 FR 55024 (Sept. 8, 2022).
---------------------------------------------------------------------------

These additional designations, extensions, and redesignations
resulted in a significant increase in initial and renewal EAD filings.
In FY 2021, USCIS received 148,898 EAD applications filed by TPS
applicants. Of these, 24,172 were renewal EAD applications. In FY 2022,
USCIS received 100,484 EAD applications filed by TPS applicants. Of
these, 33,352 were renewal EAD applications. In FY 2023, USCIS received
329,325 EAD applications filed by TPS applicants, which represent an
over 300 percent increase in TPS EAD applications from FY 2022 to FY
2023. Of these, 230,363 were renewal EAD applications as a result of
the withdrawal of the TPS terminations and extensions of TPS in that
fiscal year. As of January 2024, the Secretary has redesignated and
extended TPS for Cameroon \117\ and Syria.\118\
---------------------------------------------------------------------------

\117\ 88 FR 69945 (Oct. 10, 2023).
\118\ 89 FR 5562 (Jan 29, 2024).
---------------------------------------------------------------------------

The increased number of TPS-based EAD filings (particularly in
renewal EAD applications in the A12 category) from FY 2022 to FY 2023
further stretched limited USCIS resources and contributed to the longer
processing times for renewal EAD applications overall. Specifically,
this increase helps explain why the 80th percentile processing time for
automatic extension-eligible renewal applicants was 14.5 months by
February 2024,\119\ and increased the number of persons who are
projected to experience a lapse in their employment authorization and/
or EAD validity starting May 2024, as further detailed below.
---------------------------------------------------------------------------

\119\ For more information on how USCIS calculates its
processing times, see USCIS' web page at <a href="https://egov.uscis.gov/processing-times/more-info">https://egov.uscis.gov/processing-times/more-info</a> (last visited Nov. 14, 2023).
---------------------------------------------------------------------------

4. Increased Workforce Resources Unlikely To Keep Pace
Despite USCIS' best efforts to sufficiently anticipate and allocate
staff to process EAD applications, USCIS has been unable to keep pace
due to unexpected increases in receipts. The agency increased its
adjudicative resources in concert with the increased receipts, devoting
approximately 54 percent more adjudicative hours to EADs in FY 2023
than in FY 2022, resulting in 46 percent more EAD completions than in
FY 2022.\120\ USCIS projects that EAD application filings will continue
to increase into FY 2024. The rapid increase in anticipated EAD
application filings in FY 2024,\121\ combined with the mandated 30-day
processing time for initial C08 EAD applications, means that USCIS
expects a shortfall in adjudications compared to receipts. This
shortfall will prevent USCIS from adjudicating renewal EAD applications
in time to avoid approximately 800,000 applicants from experiencing a
temporary lapse in employment authorization and/or employment
authorization documentation during the 2-year period beginning May 2024
absent the implementation of this temporary final rule.
---------------------------------------------------------------------------

\120\ The 54 percent increase in officer hours did not result in
a 54 percent increase in completions because there are different
hours per completion rates for different EAD categories. There was a
significant increase in C08 initial adjudications in FY 2023. In FY
2023, the average C08 initial EAD application took 0.44 hours,
whereas EADs overall took 0.23 hours. Therefore, the difference in
complexity of different types of EAD adjudications is the primary
reason for the deviation in the increase of total hours and total
completions.
\121\ The Volume Projection Committee (VPC) forecasts USCIS
workload volume using subject matter expertise from various
directorates and program offices, including the Service Centers,
National Benefits Center, RAIO, and regional, district, and field
offices. Input from these offices helps refine the volume
projections. VPC forecasts that there will be 4.6 million EAD
application filings for FY 2024, compared to the approximately 3.49
million EAD applications filed in FY 2023.
---------------------------------------------------------------------------

From FY 2021 to FY 2023, adjudicative staff time \122\ in the
Service Center Operations (SCOPS) and Field Operations Directorate
(FOD) spent on EAD adjudications increased rapidly. In FY 2021, USCIS
Immigration Services Officers (ISOs) in these directorates expended
6,571,544 hours on all form types. This equates to roughly 5,249 full-
time equivalents (FTEs).\123\
---------------------------------------------------------------------------

\122\ Adjudicative staff time means actual time, in hours, that
USCIS spends adjudicating a benefit request. This includes straight
time and overtime.
\123\ An FTE is an approximation of the number of hours of labor
that make up the equivalent of one full-time employee. It allows for
a more meaningful comparison of resources than the raw number of
staff allocated to a particular adjudication, as it accounts for
factors such as part-time work, leave, and other factors. When
calculating FTEs, USCIS used a 60-percent utilization rate to
account for non-adjudicative time, such as the time officers spend
attending trainings and roundtable discussions, performing
administrative tasks, and leave.
---------------------------------------------------------------------------

During FY 2021, USCIS spent 420,248 hours on EAD applications
alone, which represents approximately 336 FTEs, or 6 percent of the
total adjudicative time spent on all filings. In FY 2022, USCIS ISOs
expended 6,732,963 hours (5,378 FTEs) in adjudications in SCOPS and
FOD, with 512,413 hours (which equates to approximately 409 FTEs), or 8
percent of total adjudication time for all filings, used on EAD
applications alone. In FY 2023, the proportion of time spent on EAD
application adjudications continued to increase, with 788,861 hours
(which equates to approximately 630 FTEs), or 12 percent of the total
adjudicative time of 6,376,682 (5,093 FTEs).\124\
---------------------------------------------------------------------------

\124\ The number of adjudicative hours in FOD and SCOPS went
down in FY 2023, as the FTE equivalent of approximately 157
Immigration Services Officers were detailed to credible fear
screenings.
---------------------------------------------------------------------------

Thus, from FY 2021 to FY 2023, the proportion of USCIS' total
adjudicative time that was spent on EAD adjudications doubled from 6
percent of total adjudicative time to 12 percent, and USCIS was not
able to sufficiently increase staff for EAD adjudications,

[[Page 24640]]

despite its robust hiring efforts.\125\ This doubling of adjudicative
time expended on a single form type over 2 years is highly unusual
\126\ and cannot be sustained without increasing resources and staffing
rapidly.
---------------------------------------------------------------------------

\125\ See other parts of this preamble explaining operational
challenges encountered through litigation and other events, such as
the need for increased staffing at the southwest border.
\126\ For example, over the same time period, adjudicative time
spent on other large USCIS workloads held relatively steady. As a
percentage of adjudication time for all filings, time spent on Form
N-400, Application for Naturalization was 22 percent in FY 2021, 22
percent in FY 2022, and 20 percent in FY 2023. Time on Form I-129,
Petition for Nonimmigrant Worker seeking H-1B classification was 8
percent of all total filings in FY 2021, 8 percent in FY 2022, and 9
percent in FY 2023.
---------------------------------------------------------------------------

As discussed earlier in this section, USCIS projects continued
growth in EAD filings in FY 2024, requiring a combination of
reallocating additional staff to adjudicate EAD applications, providing
additional overtime opportunities, and hiring new staff.\127\
---------------------------------------------------------------------------

\127\ The resources required to reduce the processing backlogs
for renewal EAD applications is discussed at section III.C.3.a.
---------------------------------------------------------------------------

Based on these developments, USCIS predicts that without this TFR,
approximately 800,000 noncitizens will experience a lapse in employment
authorization or proof of employment authorization for the 2-year
period beginning May 2024.\128\
---------------------------------------------------------------------------

\128\ See section V.B.2. Table 7, TFR Future Population
Projections by Month, Rounded to Thousands.
---------------------------------------------------------------------------

B. Other Measures Taken To Reduce EAD Application Processing Times

USCIS has also taken other significant operational steps to
streamline EAD adjudications and reduce EAD processing times. Backlogs
in general are a significant concern for the applicants who are
applying for benefits with USCIS.\129\ As the backlogs increase,
applicants and petitioners experience longer wait times to receive a
decision on their benefit requests. This is especially concerning where
the backlog involves employment authorization and/or employment
eligibility verification documentation, which is critical to
applicants' and their families' livelihoods as well as U.S. employers'
continuity of operations. USCIS understands the impact that delays in
receiving decisions on pending EAD applications have on applicants and
is striving to address the backlogs through a number of measures,
including but not limited to this TFR. Specifically, USCIS has taken
the following steps to address EAD application workloads and processing
times, which includes initiatives that were implemented prior to the
2022 TFR and are still in effect, such as lifting the hiring freeze,
publishing the Fee Rule, and reducing processing time for adjustment of
status applicants with visas that are immediately available.
---------------------------------------------------------------------------

\129\ For example, the Citizenship and Immigration Services
Ombudsman 2023 Annual Report to Congress stated that the backlogs at
USCIS have resulted in an ``ongoing exponential increase . . . in
requests for case assistance.'' The Report further states ``USCIS
began the year fully cognizant of its challenges in decreasing
processing times and getting its backlogs under control and took
significant steps to accomplish those goals. But 2022 brought with
it significant new tasks for the agency that would create their own
processing and operational challenges--challenges that the agency
continues to grapple with in 2023 and which will impact future
workloads.'' See CIS Ombudsman, DHS, ``Citizenship and Immigration
Services Ombudsman Annual Report 2023 '' (June 30, 2023) at v, viii,
<a href="https://www.dhs.gov/sites/default/files/2023-07/2023%20Annual%20Report%20to%20Congress_0.pdf">https://www.dhs.gov/sites/default/files/2023-07/2023%20Annual%20Report%20to%20Congress_0.pdf</a>.
---------------------------------------------------------------------------

1. Increased EAD Validity Periods for Certain Applicants
As discussed in section II. B., Legal Framework for Employment
Authorization, while certain classes of noncitizens are authorized to
engage in employment authorization incident to status or circumstance,
other classes of noncitizens are authorized to engage in employment
only if they apply for and are granted such authorization by
USCIS.\130\ Under governing regulations, USCIS has the discretion to
assign the validity period for EADs.\131\
---------------------------------------------------------------------------

\130\ See 8 CFR 274a.12(a)-(c).
\131\ See 8 CFR 274a.12(a) (``USCIS may, in its discretion,
determine the validity period assigned to any document issued
evidencing an alien's authorization to work in the United
States.''); 8 CFR 274a.12(c) (``USCIS, in its discretion, may
establish a specific validity period for an employment authorization
document, which may include any period when an administrative appeal
or judicial review of an application or petition is pending.'').
---------------------------------------------------------------------------

Since 2021, USCIS has made multiple policy changes to increase the
maximum validity period for EADs in a number of categories.\132\ In
February 2022, USCIS increased the validity period for initial and
renewal EADs for asylees and refugees, noncitizens with withholding of
deportation or removal, and VAWA self-petitioners from maximum 1 year
to maximum 2 years.\133\
---------------------------------------------------------------------------

\132\ See, e.g., USCIS, DHS, Policy Alert (PA-2021-10),
``Employment Authorization for Certain Adjustment Applicants'' (June
9, 2021), <a href="https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20210609-EmploymentAuthorization.pdf">https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20210609-EmploymentAuthorization.pdf</a> (updating the
validity period for initial and renewal EADs issued to applicants
for adjustment of status under INA 245 from 1 year to 2 years).
\133\ See USCIS, DHS, Policy Alert (PA-2022-07), ``Updating
General Guidelines on Maximum Validity Periods for Employment
Authorization Documents based on Certain Categories'' (Feb. 7,
2022), <a href="https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20220207-EmploymentAuthorizationValidity.pdf">https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20220207-EmploymentAuthorizationValidity.pdf</a>.
---------------------------------------------------------------------------

USCIS also changed the policy by which, in some cases, initial and/
or renewal EADs were issued for noncitizens with deferred action (non-
DACA) and parolees for a validity period that was less than the period
of deferred action or parole. The update increased the maximum period
of EAD validity to run concurrently with the underlying deferred action
or parole, thus reducing the need for repeat renewal EAD filings by
these noncitizens.\134\
---------------------------------------------------------------------------

\134\ See USCIS, DHS, Policy Alert (PA-2022-07), ``Updating
General Guidelines on Maximum Validity Periods for Employment
Authorization Documents based on Certain Categories'' (Feb. 7,
2022), <a href="https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20220207-EmploymentAuthorizationValidity.pdf">https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20220207-EmploymentAuthorizationValidity.pdf</a>.
---------------------------------------------------------------------------

On September 27, 2023, USCIS updated its policy to increase the
validity period to a maximum of 5 years for initial and renewal EADs
for certain noncitizens who must apply for employment authorization,
including applicants for asylum or withholding of removal, adjustment
of status under section 245 of the INA, 8 U.S.C. 1255, and suspension
of deportation or cancellation of removal.\135\ USCIS expects this EAD
policy to cause EAD filings in the applicable categories to
significantly decrease starting in late FY 2025 and remain low until
the third quarter of FY 2028, as there should be relatively few EADs
with an expiration date between September 25, 2025, and September 26,
2028. Although USCIS predicts that the main effects of this policy
change will not occur until after October 2025, USCIS projects that the
increased validity periods will lead to a greater than 95 percent
reduction in renewal EAD filing volumes from FY 2026 to late FY 2028
for categories covered by this policy.
---------------------------------------------------------------------------

\135\ See USCIS, DHS, Policy Alert (PA-2023-27), ``Employment
Authorization Document Validity Period for Certain Categories''
(Sept. 27, 2023), <a href="https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20230927-EmploymentAuthorizationValidity.pdf">https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20230927-EmploymentAuthorizationValidity.pdf</a>.
---------------------------------------------------------------------------

The guidance that was published as part of the updated policy also
explains that the categories of noncitizens who are automatically
authorized employment incident to status or circumstances and provided
more information on who can present a Form I-94, Arrival/Departure
Record, to an employer as an acceptable document showing employment
authorization under List C of Form I-9, Employment Eligibility
Verification.\136\ This guidance

[[Page 24641]]

also clarified that certain Afghan and Ukrainian parolees are
employment authorized incident to parole.\137\
---------------------------------------------------------------------------

\136\ See USCIS, DHS, Policy Alert (PA-2023-27), ``Employment
Authorization Document Validity Period for Certain Categories''
(Sept. 27, 2023), <a href="https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20230927-EmploymentAuthorizationValidity.pdf">https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20230927-EmploymentAuthorizationValidity.pdf</a>.
\137\ See USCIS, DHS, Policy Alert (PA-2023-27), ``Employment
Authorization Document Validity Period for Certain Categories''
(Sept. 27, 2023), <a href="https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20230927-EmploymentAuthorizationValidity.pdf">https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20230927-EmploymentAuthorizationValidity.pdf</a>.
---------------------------------------------------------------------------

With the ongoing efforts to improves processing, which USCIS
anticipates will lead to eventual reductions in filing volumes, USCIS
will be better able to keep up with the EAD application workflow, avoid
lapses in employment authorization and documentation, focus on reducing
the overall backlog at USCIS, and enable officers to focus on other
workloads.
2. Lifted the Hiring Freeze and Increased the Number of Full Time
Equivalent Employees
USCIS is a fee-based agency that relies on predictable fee revenue
and its carryover from the previous year. Due in part to the
significant drop in revenue from the impact of the COVID-19 pandemic on
benefit request filings and USCIS' inability to update its fee
structure since the 2016 Fee Rule, as explained below, USCIS employed
every available means to preserve sufficient funds to meet payroll and
carryover obligations. These measures included drastic cuts as well as
an agency-wide hiring freeze beginning on May 1, 2020.\138\
---------------------------------------------------------------------------

\138\ Although the agency-wide hiring freeze started on May 1,
2020, USCIS' FOD initiated a hiring freeze in December 2019 and
USCIS' SCOPS Directorate did the same starting in February 2020.
---------------------------------------------------------------------------

USCIS lifted the agency-wide hiring freeze in March 2021. With the
hiring freeze lifted, USCIS was able to begin hiring personnel in an
effort to return to pre-pandemic staffing levels. Initial hiring was
largely internal in order to fill promotional vacancies. Following that
initial hiring, USCIS posted public job announcements to hire from
outside USCIS. This effort's impact is not realized immediately, as it
is lengthy, time-consuming, and ongoing. The hiring process entails
posting the job announcement, reviewing resumes, providing qualified
candidates' information to the hiring office, conducting assessments
and interviews, making and approving selections, and completing
background checks prior to a new employee entering on duty. New hires
then go through orientation, several weeks of basic training, duty-
specific training, and mentoring.\139\ The entire process from entering
on duty to a new hire reaching full proficiency may take several
months.
---------------------------------------------------------------------------

\139\ See USCIS, DHS, ``Training,'' <a href="https://www.uscis.gov/about-us/careers/training">https://www.uscis.gov/about-us/careers/training</a> (last updated Jan. 2, 2020).
---------------------------------------------------------------------------

Hiring new personnel continued to be a USCIS priority in 2023 in
order to help reduce backlogs and meet operational requirements. When
DHS issued the 2022 TFR on May 4, 2022, USCIS had approximately 18,500
employees. USCIS ended 2022 with 19,983 staff, and staffing levels grew
to 20,631 by June 30, 2023.
As discussed previously, from FY 2021 to FY 2023, USCIS increased
the number of FTEs adjudicating EAD applications from 336 FTEs to 630
FTEs, an 87.5-percent increase.\140\ However, a large portion of the
FTE increase for EADs was dedicated to initial C08 EAD applications due
to the 30-day processing requirement. As a result, USCIS was unable to
divert resources to other categories, such as renewal EAD applications
in the auto-extension categories. From FY 2021 to FY 2023, USCIS
increased the number of FTEs adjudicating initial C08 EAD applications
by approximately 480 percent.\141\
---------------------------------------------------------------------------

\140\ An FTE is an approximation of the number of hours of labor
that make up the equivalent of one full-time employee. See fn. 123
in section III.A.4 of this preamble.
\141\ As previously discussed, USCIS ISOs spent 68,000 hours on
C08 initial EAD applications in FY 2021, 116,000 hours in FY 2022,
and 361,000 hours in FY 2023.
---------------------------------------------------------------------------

In short, from FY 2021 to FY 2023, USCIS increased the number of
FTEs dedicated to adjudicating EAD applications by 87.5 percent.
However, this significant increase in personnel performing EAD
adjudications has not been sufficient to address the surge in
applications. USCIS expects a continued FTE shortfall in the short term
that will prevent USCIS from adjudicating renewal EAD applications in
time to prevent a temporary lapse in employment authorization for
approximately 800,000 applicants during the 2-year period beginning May
2024.
3. Issuance of Final Fee Rule
USCIS is primarily funded by fees charged to applicants and
petitioners for the adjudication of immigration and naturalization
benefits requests and is authorized, by law, to recover the full cost
\142\ of all adjudications and naturalization services.\143\ USCIS
calculates and proposes fees to recover the full cost of operations
associated with adjudicating immigration benefit requests as authorized
by section 286(m) of the INA, 8 U.S.C. 1356(m). USCIS last adjusted its
fee schedule in December 2016, including the fees for EAD applications,
although the mandated biennial fee reviews indicate an urgent need to
update USCIS filing fees.\144\ However, DHS until recently has been
unable to update the fee structure, as explained below, and the current
2016 fee structure, including the Form I-765 fee of $410 per
adjudication, has been insufficient to recover the full cost of USCIS
operations, thus leading to the fiscal troubles previously
described.\145\
---------------------------------------------------------------------------

\142\ Full costs of providing all adjudication and
naturalization services, includes support costs such as physical
overhead, information technology management and oversight, human
resources, national security vetting and investigations, accounting
and budgeting, and legal services. See 88 FR 402, 417 (Jan. 4, 2023)
(``2023 Fee Rule NPRM'').
\143\ See INA sec. 286(m), 8 U.S.C. 1356(m) (authorizing DHS to
charge fees for adjudication and naturalization services at a level
to ``ensure recovery of the full costs of providing all such
services, including the costs of similar services provided without
charge to asylum applicants or other immigrants''). This contrasts
with congressional appropriated agencies, whose budgets are not
directly impacted by fluctuations in fee revenue.
\144\ See 81 FR 73292 (Oct. 24, 2016) (``2016/2017 Fee Rule'').
Under the Chief Financial Officers Act of 1990 (``CFO Act''),
codified at 31 U.S.C. 901-03, and under the Office of Management and
Budget (OMB) Circular A-25, USCIS must conduct biennial reviews of
the non-statutory fees deposited into USCIS' fee account. The
primary objective of a fee review is to determine whether
immigration and naturalization benefit fees will generate sufficient
revenue to fund the anticipated operating costs associated with
administering the nation's legal immigration system and to propose
the necessary adjustments.
\145\ See 88 FR 402, 405 (Jan. 4, 2023).
---------------------------------------------------------------------------

In the spring of 2020, in the wake of the COVID-19 pandemic, USCIS
revenue dropped by 40 percent in April and an additional 25 percent in
May from the forecasted collections. That created a possibility that
USCIS might violate statutory anti-deficiency requirements and led to
dramatic cuts in spending through the last half of FY 2020, a hiring
freeze, and planned furloughs if revenue did not increase.\146\
---------------------------------------------------------------------------

\146\ See 88 FR 402, 426 (Jan. 4, 2023).
---------------------------------------------------------------------------

Towards the end of June and July 2020, revenue began to return to
normal levels and, in conjunction with major budget cuts, allowed USCIS
to avoid the furloughs. In FY 2021, USCIS instituted 32 percent cuts to
non-payroll expenses, continued the hiring freeze through April 2021,
and did not fund enhancements. While USCIS' carryover funding has
stabilized, USCIS is still enduring the effects of those 32 percent
budget cuts.\147\
---------------------------------------------------------------------------

\147\ See 88 FR 402, 426 (Jan. 4, 2023).
---------------------------------------------------------------------------

DHS issued a final rule on August 3, 2020, to adjust the USCIS fee
schedule by a weighted average of 20 percent, reflecting the results of
the FY 2019/2020 USCIS fee review.\148\ DHS

[[Page 24642]]

estimated an average annual USCIS deficit of $1,035.9 million.\149\ The
rule was scheduled to become effective on October 2, 2020.\150\
However, USCIS was not able to implement the fees set out in the 2020
fee rule because it was enjoined by two Federal district courts.\151\
---------------------------------------------------------------------------

\148\ See 85 FR 46788 (Aug. 3, 2020) (``2020 Fee Rule''). The
final rule was issued after DHS has published a proposed rule. See
84 FR 62280 (Nov. 14, 2019).
\149\ See 85 FR 46788, 46794 (Aug. 3, 2020).
\150\ See 85 FR 46788 (Aug. 3, 2020).
\151\ Immigrant Legal Res. Ctr. v. Wolf, 491 F. Supp. 3d 520
(N.D. Cal. 2020) (``ILRC''); Nw. Immigrant Rights Project v. USCIS,
496 F. Supp. 3d 31 (D.D.C. 2020) (``NWIRP'').
---------------------------------------------------------------------------

On January 31, 2024, DHS published a new Fee Rule to cover the
increased cost of adjudicating benefit requests.\152\
---------------------------------------------------------------------------

\152\ See U.S. Citizenship and Immigration Services Fee Schedule
and Changes to Certain Other Immigration Benefit Request
Requirements, proposed rule, 88 FR 402, 492 (Jan. 4, 2023); and U.S.
Citizenship and Immigration Services Fee Schedule and Changes to
Certain Other Immigration Benefit Request Requirements, final rule,
89 FR 6194 (Jan. 31, 2024).
---------------------------------------------------------------------------

As explained in section III.B.2 of this preamble, prior to
finalizing the Fee Rule, a USCIS endured a lengthy hiring freeze that
left thousands of positions unfilled for an extended period. Even
though the hiring freeze ended on March 31, 2021, USCIS was constrained
for a prolonged period by the fee levels in the 2016 Fee Rule. USCIS is
working diligently to backfill vacant positions and hire for new ones.
However, the Federal recruitment, hiring, and vetting processes take
many months followed by onboarding, basic training, and several weeks
of form-specific training and mentoring. Incoming receipts have
exceeded the agency's gains through hiring, and those hiring gains have
been limited by insufficient revenue.\153\
---------------------------------------------------------------------------

\153\ From FY 2021 through FY 2022, USCIS received a range of
approximately 2.3 to 2.6 million EAD applications (seeking both
initial EADs and renewal of initial EADs) each fiscal year. In FY
2023, this figure increased to approximately 3.5 million. This
increase in EAD applications contributed to the formation of
backlogs, as discussed further in section III.C.1 of this preamble.
---------------------------------------------------------------------------

4. Prioritized Adjudication of Employment-Based I-485 Adjustment
Applications
Another area in which USCIS is actively prioritizing its workload
is employment-based adjustment of status applications, which has
downstream effects on EAD application adjudications, particularly those
based on a pending adjustment of status application (C09). Since
employment-based adjustment of status applicants are eligible for
employment authorization based on the pendency of the adjustment of
status application, the number of such applications filed with USCIS
and the duration of their pendency directly impact the number of
initial and renewal EAD applications filed. At the start of FY 2021,
there were approximately 126,000 employment-based adjustment of status
applications pending with USCIS. Approximately 313,000 employment-based
adjustment of status applications were received during FY 2021. USCIS
typically processes approximately 120,000 employment-based adjustment
of status applications each year,\154\ which generally corresponds with
the number of available employment-based immigrant visas minus the
number of such visas issued by Department of State annually. However,
in FY 2021, FY 2022, and FY 2023, additional employment-based visas
became available because of unusually low visa usage in the family-
sponsored preference categories due in part to consular closures during
the COVID-19 pandemic.\155\ In response, USCIS prioritized processing
of employment-based adjustment of status applications to maximize usage
of available visas. By the end of FY 2021, USCIS had processed and
approved approximately 175,000 employment-based adjustment of status
applications, an increase of approximately 50 percent above the typical
baseline.\156\ USCIS continued this prioritization in FY 2022,
approving more than 220,000 employment-based adjustment of status
applications, and in FY 2023, where preliminary estimates show that
USCIS approved more than 145,000 such applications. However, at the
start of FY 2024 approximately 180,000 employment-based adjustment of
status applications remained unadjudicated, including approximately
122,000 impacted by priority date retrogressions that may leave them
pending for many years and thereby eligible for C09 EADs during this
extended period.\157\
---------------------------------------------------------------------------

\154\ See Office of Immigration Statistics, DHS, ``2021 Yearbook
of Immigration Statistics,'' Table 7, ``Persons Obtaining Lawful
Permanent Resident Status by Type and Major Class of Admission:
Fiscal Years 2012 2021,'' <a href="https://www.dhs.gov/sites/default/files/2023-03/2022_1114_plcy_yearbook_immigration_statistics_fy2021_v2_1.pdf">https://www.dhs.gov/sites/default/files/2023-03/2022_1114_plcy_yearbook_immigration_statistics_fy2021_v2_1.pdf</a> (last
visited Nov. 14, 2023).
\155\ Family-sponsored visas that remain unused at the end of
the fiscal year are made available in the subsequent fiscal year to
employment-based categories. See INA sec. 201(d); 8 U.S.C. 1151(d);
see also USCIS, DHS, Archive, ``Fiscal Year 2022 Employment-Based
Adjustment of Status FAQs'' (last reviewed/updated Aug. 26, 2022),
<a href="https://www.uscis.gov/archive/fiscal-year-2022-employment-based-adjustment-of-status-faqs">https://www.uscis.gov/archive/fiscal-year-2022-employment-based-adjustment-of-status-faqs</a>.
\156\ See USCIS, DHS, News Release, ``USCIS Announces FY 2021
Accomplishments'' (Dec. 16, 2021), <a href="https://www.uscis.gov/newsroom/news-releases/uscis-announces-fy-2021-accomplishments">https://www.uscis.gov/newsroom/news-releases/uscis-announces-fy-2021-accomplishments</a> (last viewed
Nov. 27, 2023).
\157\ For more information on visa retrogression, see <a href="https://www.uscis.gov/green-card/green-card-processes-and-procedures/visa-availability-priority-dates/visa-retrogression">https://www.uscis.gov/green-card/green-card-processes-and-procedures/visa-availability-priority-dates/visa-retrogression</a> (last accessed Dec.
7, 2023). In the interest of reducing the burden on both the agency
and the public, USCIS has implemented multiple increases of the
maximum validity period for initial and renewal EADs issued to
applicants for adjustment of status under sec. 245 of the INA, 8
U.S.C. 1255, as described in section III.B.1 of this preamble.
USCIS' return to its processing goal of 3 months for EAD renewal
applications is critically important for applicants facing visa
retrogression, as they may require multiple renewals.
---------------------------------------------------------------------------

To the extent possible, USCIS is committed to prioritizing
adjudicating employment-based adjustment of status applications to
utilize the available visa numbers each fiscal year.\158\ In turn, many
applicants are relieved from filing renewal EAD applications, because
approval of the adjustment of status application grants the noncitizen
lawful permanent resident status such that they are employment
authorized incident to status, and leads to issuance of a Permanent
Resident Card, an acceptable Form I-9 document.\159\ Therefore, the
more adjustment of status applications USCIS is able to process and
approve, the fewer C09 renewal EAD applications USCIS will receive,
thereby reducing the number of EAD renewal filings overall. In the
interim, urgent action is needed to address the growing number of
renewal EAD applicants who may soon experience a gap in their
employment authorization and/or EAD because of USCIS' predicted but
unprecedented renewal EAD processing times.
---------------------------------------------------------------------------

\158\ While the INA provides that unused employment-based visas
allocated to a given fiscal year are made available in the
subsequent fiscal year to family-sponsored preference categories,
those visas are effectively lost due to other provisions that have
the effect, after accounting for the number of immigrant visas used
by immediate relatives of U.S. Citizens (among others), of setting
the number of family-sponsored preference visas in a fiscal year at
226,000. See INA sec. 201(c) and (d); 8 U.S.C. 1151(c) and (d). To
avoid the loss of unused employment-based immigrant visas, USCIS
prioritizes employment-based adjustment of status applications over
most other applications, including EAD renewal applications.
\159\ See 8 CFR 274a.12(a)(1).
---------------------------------------------------------------------------

5. Issued Guidance Stating That Spouses of E and L Nonimmigrants Are
Employment Authorized Incident to Status
In March 2022, USCIS issued policy guidance stating that spouses of
E \160\

[[Page 24643]]

and L \161\ nonimmigrants were authorized to work incident to status
and did not need to obtain an EAD in order to seek employment.\162\
This new policy resulted in reduced initial and renewal EAD
applications by these noncitizen spouses. During the 12 months
preceding this policy update, between March 1, 2021, and February 28,
2022, USCIS received an average of 700 A17 (spouse of E nonimmigrant)
and 1,500 A18 (spouse of L nonimmigrant) EAD applications per month.
Between March 1, 2022, and September 30, 2023, after the policy began
to take effect, USCIS received an average of 220 A17 and 350 A18 EAD
applications per month. In FY 2023, USCIS received an average of 160
A17 and 90 A18 EAD applications per month. Therefore, this policy
resulted in a reduction of about 2,000 initial and renewal EAD
applications per month.
---------------------------------------------------------------------------

\160\ See INA sec. 101(a)(15)(E), 8 U.S.C. 1101(a)(15)(E)
(providing that a noncitizen entitled to enter the United States
under and in pursuance of the provisions of a treaty of commerce and
navigation between the United States and the foreign state of which
the noncitizen is a national, (or, in the case of a noncitizen who
acquired the relevant nationality through a financial investment and
who has not previously been granted status under this subparagraph,
the foreign state of which the noncitizen is a national and in which
the noncitizen has been domiciled for a continuous period of not
less than 3 years at any point before applying for a nonimmigrant
visa under this subparagraph), and the spouse and children of any
such noncitizen if accompanying or following to join such alien.).
\161\ See INA sec. 101(a)(15)(L); 8 U.S.C. 1101(a)(15)(L)
(providing that a noncitizen who, within 3 years preceding the time
of his application for admission into the United States, has been
employed continuously for one year by a firm or corporation or other
legal entity or an affiliate or subsidiary thereof and who seeks to
enter the United States temporarily in order to continue to render
his services to the same employer or a subsidiary or affiliate
thereof in a capacity that is managerial, executive, or involves
specialized knowledge, and the noncitizen spouse and minor children
of any such noncitizen if accompanying him or following to join
him'').
\162\ See USCIS, DHS, Policy Alert (PA-2022-11), ``Documentation
of Employment Authorization for Certain E and L Nonimmigrant
Dependent Spouses'' (Mar. 18, 2022) <a href="https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20220318-EmploymentAuthorization.pdf">https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20220318-EmploymentAuthorization.pdf</a>.
---------------------------------------------------------------------------

6. Permitted Certain Asylum Applicants To Electronically File EAD
Applications
In January 2023, USCIS announced that certain asylum applicants
were now eligible to electronically file applications for EADs in the
C08 category.\163\ This allowed applicants to submit their
applications, check the status of their case, and receive notices from
USCIS online, thus reducing the operational costs associated with paper
applications such as scanning, manual data entry, and shredding. These
cost savings have allowed resources to be used elsewhere, including
funding new positions and overtime. Offering the option to file EAD
applications online has made the process more efficient, secure, and
convenient for EAD applicants and increased operational efficiencies
for USCIS.
---------------------------------------------------------------------------

\163\ See USCIS, DHS, ``Asylum Applicants Can Now File Form I-
765 Online,'' <a href="https://www.uscis.gov/newsroom/alerts/asylum-applicants-can-now-file-form-i-765-online">https://www.uscis.gov/newsroom/alerts/asylum-applicants-can-now-file-form-i-765-online</a> (last accessed Dec. 7,
2023).
---------------------------------------------------------------------------

7. Alternative Backlog Reduction Method Considered But Not Implemented:
Changing the Adjudication of EAD Renewal Applications To Prioritize
Adjudication by the Expiration Date of an Applicant's 180-Day Automatic
Extension
In addition to the backlog reduction efforts described in section
III.B of this preamble, USCIS explored the possibility of changing the
order of renewal EAD adjudications from a general First in First Out
(FIFO) processing order \164\ to a processing order that would
prioritize adjudication based on the expiration date of the applicant's
180-day automatic extension period. After careful consideration, USCIS
has determined that this option was not operationally feasible. The
primary reasons are the manual effort required to identify and assign
cases to officers based on when an individual's previous employment
authorization expires, the volume of impacted cases, and the inability
to surge additional resources to implement such a change.
---------------------------------------------------------------------------

\164\ Under a FIFO processing order, applications are generally
reviewed in the order in which they are received.
---------------------------------------------------------------------------

Regarding the manual effort required to identify when the EAD
associated with a renewal case expires, there is currently no system-
based way to assign work based on expiring employment authorization.
This means that, although cases can be tracked online using existing
systems, the act of delivering those cases based on expiration dates to
an officer requires that they be manually assigned. Additionally, as
the categories of renewal applications are filed and adjudicated in a
mix of paper and electronic formats, records staff must physically
locate each individual paper file. EAD applications that are paper
files are generally organized and assigned by receipt date on file room
shelves, so any attempt to manually identify when the EAD associated
with a renewal case expires would require physically tabbing through
all files received on the same given day and for the same filing
category. Multiplying that effort by the hundreds of thousands of
pending renewal EAD applications would cause significant inefficiencies
for both adjudications and records staff, diverting resources further
away from other tasks, in turn creating new backlogs. As of November
2023, approximately 467,000 thousand EAD applications pending with
SCOPS (44 percent) remained in paper files.
Even with respect to electronically filed renewal EAD applications,
it is currently not possible to assign cases electronically by
expiration date. USCIS would have to do so manually, using spreadsheets
to log and identify all pending EAD renewal applications and then
document and sort each case by date of EAD expiration. USCIS would then
need to identify each application in the system and then manually route
each EAD application to be assigned for pre-processing and
adjudication.\165\ The task of manually assigning work for both pre-
processing and adjudication would take additional time and interfere
with USCIS' overall productivity until the system can be modified to
accommodate a new process for prioritizing and assigning work. As
discussed below, it would take at least one year to modify the system
to re-prioritize this workload.
---------------------------------------------------------------------------

\165\ Before most applications and petitions are assigned to an
officer for adjudication, they are pre-processed, meaning the
information contained with the case is ingested, vetted, and
verified, and then the case is routed to the appropriate workflow
for adjudication.
---------------------------------------------------------------------------

In addition, the information technology resources required to
modify the system in this manner and the time it takes to develop,
test, and implement an automated assignment process make it infeasible
to reprioritize the workload in the system in time to prevent the
renewal EAD expirations beginning in May 2024. To implement this
process in USCIS' Electronic Immigration System online system, it would
take the USCIS Office of Information Technology approximately 6 to 9
months of development work and an additional 3 months for beta testing
and deployment. In addition, changes would need to be made to the
process by which cases are selected for adjudication in the case
management system used by USCIS to process immigration benefit
requests.
Finally, prioritizing renewal EAD applications based on the
expiration of the 180-day automatic extension periods versus a general
FIFO processing order would lead to the inequitable result that
applicants who filed their renewal EAD applications right before the
expiration of their EADs could be prioritized over applicants who filed
their renewal EAD applications according to USCIS' recommended filing
period in advance of their EAD expiration date. Such prioritization
could incentivize more applicants to file their renewal EAD
applications close to the expiration of their EADs, as their
applications would effectively be expedited over other applications
filed up to 6 months in advance of expiration. Should that occur, USCIS
and the public would

[[Page 24644]]

become more reliant on automatic extensions to help minimize the
problem of gaps in employment authorization and/or valid documentation
instead of the preferred solution of maintaining the current processing
order, continuing to pursue additional processing efficiencies, and
temporarily extending the automatic extension period to up to 540 days
in this TFR.

C. The Need To Increase the Automatic Extension Period From 180 Days to
540 Days

1. EAD Application Processing Backlogs
USCIS relies on a combination of internal processes and plans to
work to reduce backlogs.\166\ Although USCIS has been diligently
implementing the backlog mitigation efforts discussed in section III.B
of this preamble in order to reduce renewal EAD application processing
times, USCIS is unable to achieve its target 3-month processing goal or
significantly reduce the EAD renewal processing times to below 180 days
due to the volume of pending EAD applications, new EAD filings that
USCIS continues to receive, and time needed to increase staffing levels
to meet existing demands.
---------------------------------------------------------------------------

\166\ The primary way staffing for backlog reduction has taken
place is through hiring based on fee-funded receipts, improved
efficiencies to current processes, and some appropriations from
Congress.
---------------------------------------------------------------------------

As of February 2024, USCIS had approximately 439,000 pending
renewal EAD requests in the categories eligible for automatic
extension,\167\ and received an average of approximately 52,800
additional automatic extension-eligible renewal EAD applications per
month in FY 2023.\168\ These additional renewal applications are adding
to the current backlog, given that USCIS currently completes
approximately 49,100 automatic extension-eligible renewal EAD
applications per month.\169\
---------------------------------------------------------------------------

\167\ The vast majority of applicants filing renewal EAD
applications and who are eligible for the automatic extension of
EADs under 8 CFR 274a.13(d) fall into three filing categories: (1)
noncitizens who have properly filed applications for asylum and
withholding of deportation or removal (C08); (2) noncitizens who
have filed applications for adjustment of status to lawful permanent
resident under section 245 of the INA, 8 U.S.C. 1255 (C09); and (3)
noncitizens who have filed applications for suspension of
deportation under section 244 of the INA (as it existed prior to
April 1, 1997), cancellation of removal pursuant to section 240A of
the INA, 8 U.S.C. 1229b, or special rule cancellation of removal
under section 309(f)(1) of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (C10). In FY 2023, these three
filing categories made up nearly 61 percent of the renewal EAD
receipts filed in categories eligible for the automatic extension of
employment authorization. Broken down further among these three
categories: the C08 category comprised approximately 41 percent of
the renewal EAD receipts filed in categories eligible for the
automatic extension, while the C09 category comprised approximately
10 percent and the C10 comprised approximately 10 percent.
\168\ In FY 2023, USCIS received a total of approximately
633,000 renewal EAD applications in the categories eligible for
automatic extension, which averages to approximately 52,800 filings
per month.
\169\ Based on current processing times, many of the 534,000
currently pending renewal EADs will remain pending through the end
of FY 2024. These applications generally do not add to the number of
renewal applicants who will lose employment authorization in May
2024 because most of the pending renewal applications were filed
under the 2022 TFR and still benefit from the 540-day automatic
extension period.
---------------------------------------------------------------------------

In FY 2023, the 80th percentile processing time for all renewal EAD
applications was 14.2 months. For those automatic extension-eligible
renewal applicants, as of February 2024, the 80th percentile processing
time was 14.5 months.\170\ Given these processing times and USCIS' EAD
adjudication rates, DHS projects that, between May 2024 to March 2026,
approximately 800,000 renewal applicants eligible for an automatic
extension will exceed the 180-day automatic extension period unless
this Temporary Final Rule is issued.
---------------------------------------------------------------------------

\170\ For more information on how USCIS calculates its
processing times, see USCIS' web page at <a href="https://egov.uscis.gov/processing-times/more-info">https://egov.uscis.gov/processing-times/more-info</a> (last visited Nov. 14, 2023).
---------------------------------------------------------------------------

2. Impact of Long Processing Times for Renewal EAD Applications
For the reasons discussed in section III.A of this preamble, the
dramatic increase in EAD applications and associated operational
challenges were caused by a number of external developments that
constrained USCIS' ability to dedicate sufficient resources to
processing renewal EAD applications. As a result, the 180 days of
additional employment authorization and/or EAD validity under 8 CFR
274a.13(d) are insufficient. After the additional 180 days are
exhausted, many applicants will still be waiting for their renewal EAD
applications to be approved. These applicants will experience a lapse
in their employment authorization and/or EAD validity while their
renewal applications remain pending.
Without immediate intervention, DHS estimates that the situation
will dramatically worsen over time, as each month thousands of
additional renewal EAD applicants will be at risk of losing their
employment authorization and/or EAD validity despite the 180-day
automatic extension period currently provided by regulation.
USCIS projects that approximately 800,000 individuals could lose
employment authorization between May 2024 and March 2026 in the absence
of this TFR.\171\ In May 2024, 3,000 renewal applicants, the majority
\172\ of whom are in the C08 pending asylum applicant category, are
projected to experience a gap in their employment authorization and/or
EAD validity. The number of applicants who could lose employment
authorization and/or EAD validity each month will rapidly increase to
12,000 during July, and peaking at more than 60,000 during November
2025, unless immediate action is taken to remedy the situation.
---------------------------------------------------------------------------

\171\ See section V.B.2., Table 7, TFR Future Population
Projections by Month, Rounded to Thousands.
\172\ See section V.B.2., Table 6A. EADs that could lapse in the
absence of the TFR, by Class and Percent Variation.
---------------------------------------------------------------------------

The situation for asylum applicants is especially dire because of
the significant time that asylum applicants must wait to become
employment-authorized in the first place. By statute, asylum applicants
cannot be approved for initial EADs until their asylum applications
have been pending for 180 days.\173\ This initial wait time exacerbates
the often-precarious economic situations asylum seekers may be in as a
result of fleeing persecution in their home countries. Many lacked
substantial resources to support themselves before they fled or spent
much of what they had to escape their country and travel to the United
States. Those with resources may have been forced to leave what they
had behind because they lacked the time to sell property or otherwise
gather what they owned. When whole families are threatened, the primary
earner may be the first to travel to the United States to establish a
new home before bringing the rest of the family. The cost to travel to
the United States is high, as is the relative cost of living. In these
circumstances, if the asylum seeker is unable to work for extended
periods of time, it can not only negatively impact that individual, but
the whole family as well. For those who have already found jobs to
support their needs, the potential for their initial EADs to expire
prior to the approval and issuance of a renewed EAD may force them back
into instability caused by a gap in their authorization to work.
---------------------------------------------------------------------------

\173\ See INA sec. 208(d)(2), 8 U.S.C. 1158(d)(2).
---------------------------------------------------------------------------

Continuation of employment authorization and/or EADs is also a
requirement for their employers who must comply with Form I-9
reverification requirements in order to continue to employ these
employees.\174\ In addition, some employers, notwithstanding possible
violation of section 274B of the INA, 8 U.S.C. 1324b

[[Page 24645]]

(governing unfair immigration-related employment practices), may be
hesitant to hire asylum seekers in the first place if it appears
maintaining their employment will be difficult due to potential lapses
in employment authorization.
---------------------------------------------------------------------------

\174\ See 8 CFR 274a.2(b)(1)(vii).
---------------------------------------------------------------------------

Continuous employment authorization and documentation during the
pendency of an asylum application is vital for asylum seekers in the
United States to access housing, food, and other necessities. In
addition, asylum seekers may need income from employment to access
medical care, mental health services, and other resources, as well as
to access legal counsel in order to pursue their claims before USCIS or
EOIR. Access to mental health services is particularly crucial for
asylum seekers due to the prevalence of trauma-induced mental health
concerns, including depression and post-traumatic stress disorder. The
physical harm experienced by many asylum seekers frequently
necessitates continuous medical care for extended periods of time.
Finally, the purpose for which asylum seekers came to the United States
is to seek long-term protection by receiving asylum.
In addition, having unexpired employment authorization and EADs is
necessary for certain noncitizens such as asylum applicants and TPS
beneficiaries when they apply for benefits that require proof of
identity or immigration status. The only acceptable document available
to some noncitizens such as asylum applicants and TPS beneficiaries to
establish identity for other purposes, such as obtaining a REAL ID-
compliant driver's license or identification card, may be an unexpired
EAD.\175\ REAL ID-compliant driver's licenses as well as identification
cards are used for other official purposes including access to Federal
facilities and boarding federally regulated commercial aircraft.\176\
Without an unexpired EAD, certain classes of noncitizens would not be
able to apply for REAL ID-compliant driver's licenses and IDs.
---------------------------------------------------------------------------

\175\ 6 CFR 37.11(c).
\176\ REAL ID Act of 2005, Public Law 109-13, div. B, Title II,
Sec. 201(3) (May 11, 2005).
---------------------------------------------------------------------------

DHS is aware of the importance of employment authorization and
evidence of employment authorization for applicants' and their
families' livelihoods, as well as their U.S. employers' continuity of
operations and financial health. DHS also is cognizant of the potential
detrimental impact that gaps in employment authorization may have on an
applicant's eligibility for future immigration benefits should the
applicant, e.g., inadvertently engage in unauthorized employment during
the gap,\177\ and on their U.S. employers who must examine unexpired
documents that evidence their employees' employment eligibility and
attest that their employees are authorized to work in the United
States.\178\ DHS also acknowledges that the substantial increase in
backlogs and prolonged processing times for renewal EAD applications
are not the fault of applicants, but nonetheless will have significant
adverse consequences for applicants, their families, and their
employers in the absence of this TFR.
---------------------------------------------------------------------------

\177\ With certain exceptions, if a noncitizen continues to
engage in or accepts unauthorized employment, the individual may be
barred from adjusting status to that of a lawful permanent resident
under INA 245. See INA secs. 245(c)(2) and (8), 8 U.S.C. 1255(c)(2)
and (8).
\178\ See, e.g., INA sec. 274A(b)(1), 8 U.S.C. 1324a(b)(1), 8
CFR 274a.2(a)(3).
---------------------------------------------------------------------------

3. The Current Automatic Extension Period of 180 Days Must Be
Temporarily Increased to 540 Days
DHS has determined that the automatic extension period of up to 180
days at 8 CFR 274a.13(d) is currently insufficient to meet the original
purpose for which it was implemented: to prevent the occurrence of gaps
in employment authorization and documentation for eligible
applicants.\179\ Although USCIS has significantly increased staffing as
well as case completions, these gains have been outstripped by the
increased volume of receipts and other operational issues. As a result,
USCIS is unable to significantly increase its rate of completion in the
immediate term and, therefore, is currently unable to meaningfully
reduce the volume of pending cases while also keeping pace with the
inflow of renewal EAD filings. While USCIS will continue to explore and
implement ways to improve adjudicative efficiencies in the short and
long term, USCIS expects that its substantial renewal EAD backlogs will
continue in the immediate future. This temporary circumstance has
created an urgent situation for noncitizens and U.S. employers as gaps
in employment authorization and documentation have a highly detrimental
impact on noncitizen workers and their U.S. employers.
---------------------------------------------------------------------------

\179\ See Retention of EB-1, EB-2, and EB-3 Immigrant Workers
and Program Improvements Affecting High-Skilled Nonimmigrant Workers
final rule, 81 FR 82398, 82405 (Jan. 17, 2017) (``To prevent gaps in
employment for such individuals and their employers, the final rule
provides for the automatic [180-day] extension of EADs (and, where
necessary, employment authorization) upon the timely filing of a
renewal application.'').
---------------------------------------------------------------------------

a. Reduce Backlogs
As stated above, USCIS received an average of approximately 52,800
automatic extension-eligible EAD applications per month in FY 2023, and
completes approximately 49,100 such requests per month, leading to the
growing backlog.\180\ The 80th percentile processing time for the
automatic extension categories combined as of February 2024 was 14.5
months. Based on current incoming volumes and completions, USCIS
projects that this backlog will hold steady, if not slightly increase,
in the next 6 months. USCIS began to hire following the end of the
hiring freeze associated with the fiscal impacts of COVID-19 and the
potential furlough, both of which contributed to higher-than-average
attrition. The hiring and training processes are lengthy, but USCIS is
continuing to grow and see the increases in completions associated with
improved staffing. Additionally, the agency continues to refine and
expand the use of systems to improve processing efficiency.
---------------------------------------------------------------------------

\180\ See section V.B.2, Table 6A., EADs that could lapse in the
absence of the TFR, by Class and Percent Variation.
---------------------------------------------------------------------------

Based on the growth of receipts for renewal EAD applications in the
past year \181\ and USCIS' projection of similar growth, DHS believes
that a temporary increase of 360 days (beyond the 180-day period) for a
total of 540 days (approximately 18 months) is an appropriate increase
of the automatic extension period to mitigate the risk that a majority
of eligible applicants will experience a lapse in employment
authorization or EAD validity, consistent with the purpose of the
generally applicable automatic extension provision provided under the
current regulation.
---------------------------------------------------------------------------

\181\ See section III.A, Table 1C. of this preamble for more
details.
---------------------------------------------------------------------------

The temporary extension period implemented in this TFR better
reflects current and potential processing times for renewal EADs and
should provide USCIS with more time to further increase adjudicative
staff, implement additional processing efficiencies, and reduce renewal
EAD processing times to a level that aligns with the current up to 180-
day automatic extension provision. USCIS is committed to mitigating the
impact of renewal EAD application processing delays on applicants as it
continues to work to return to its goal of processing renewal EAD
applications within 3 months.\182\
---------------------------------------------------------------------------

\182\ See USCIS, DHS, ``Reducing Processing Backlogs,'' <a href="https://egov.uscis.gov/processing-times/reducing-processing-backlogs">https://egov.uscis.gov/processing-times/reducing-processing-backlogs</a> (last
visited Jan. 19, 2024).

---------------------------------------------------------------------------

[[Page 24646]]

To determine how long DHS should provide this temporary increased
automatic extension period, DHS assessed the pending and incoming
volume of renewal EAD filings against current USCIS resources. As of
February 2024, USCIS had approximately 439,000 pending renewal EAD
requests in automatic extension-eligible categories, and this is
projected to increase for the near future. To achieve USCIS' processing
goal of 3 months for EAD renewal applications,\183\ USCIS must keep
pace with the incoming volume (in other words, complete approximately
57,500 renewal EAD requests in automatic extension-eligible categories
per month projected in the 18 month period beginning in May 2024) in
addition to reducing the pending volume of renewal requests from
439,000 to 172,500.\184\ USCIS anticipates that the decrease in filings
for applicants who received an EAD with 5-year validity will provide an
opportunity to address existing backlogs and improve processing times.
USCIS currently completes approximately 49,100 automatic-extension
eligible renewal EAD adjudications per month, averaging 0.23 hours per
completion. To reduce the expiration counts to near zero by the end of
the TFR period, USCIS would need to increase completions by
approximately 4,900 per month, which is about a 10% increase. This
means that USCIS would need to devote approximately 162,000 officer
hours a year at 15 minutes per case, or achieve an equivalent increase
in completions through policy changes, processing enhancements, or
other means, in order to keep pace with the incoming flow of new
renewal requests and minimize the number of renewal applicants who may
lose their employment authorization and/or documentation prior to the
approval of their EAD applications. As described in section III.C.3.b
of this preamble, USCIS will continue pursuing other means to increase
completions and reduce expirations while this TFR is in effect.
---------------------------------------------------------------------------

\183\ See USCIS, DHS, ``Reducing Processing Backlogs,'' <a href="https://egov.uscis.gov/processing-times/reducing-processing-backlogs">https://egov.uscis.gov/processing-times/reducing-processing-backlogs</a> (last
visited Jan. 19, 2024).
\184\ USCIS estimates that 172,500 pending requests translates
roughly to a 3-month processing time, depending on monthly EAD
renewal application receipts and the number of officer hours devoted
to processing renewal receipts.
---------------------------------------------------------------------------

Therefore, DHS has concluded that it will authorize a temporary
360-day increase to the automatic 180-day extension period, for a total
of 540 days, to individuals who file a renewal EAD application during
the 540-day period following publication of this rule. DHS will also
grant the additional 360-day increase to the automatic extension period
to those with pending renewal applications that were filed after the
expiration of TFR 2022, that is, on or after October 27, 2023.
Applicants who file an EAD renewal application after this filing
timeframe and who are eligible for an automatic extension of their
employment authorization and/or EADs will receive the 180-day automatic
extension period currently provided at 8 CFR 274a.13(d)(1).
This TFR applies to two groups of applicants. First, the rule
applies to those renewal applicants eligible for the automatic
extension who have filed their renewal EAD applications on or after
October 27, 2023,\185\ which remain pending as of the date this rule
goes into effect, [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER],
and whose EAD has not expired or whose current up to 180-day auto-
extension has not yet lapsed, since this group is at imminent or near-
term risk of experiencing a gap in employment authorization and/or
documentation.\186\ Second, the rule applies to new renewal applicants
who file their EAD applications during the 18-month period following
the rule's effective date to avoid a future gap in employment
authorization and/or documentation.\187\ However, in recognition of
Congress' clear intent in the INA to prohibit and provide penalties for
unauthorized employment, including the accountability of employers that
employ noncitizens who are not authorized to work in the United
States,\188\ this TFR does not address periods of unauthorized
employment. In other words, this rule does not cure any unauthorized
employment that may have accrued prior to issuance of the rule.
---------------------------------------------------------------------------

\185\ Individuals who have filed their renewal EAD application
on or before October 26, 2023.
\186\ An individual who filed a renewal EAD application on or
after October 27, 2023, but whose application was denied prior to
the publication date of this rule, no longer has a pending
application and therefore will not receive the additional automatic
extension.
\187\ Providing a set amount of additional automatic extension
time for a set period is the least administratively burdensome
approach, allowing the agency to focus its limited resources on
addressing the lengthy processing times themselves. Additionally,
DHS anticipates that this approach is the least burdensome for the
public, including employees and employers, since the temporary
solution is clear, can be relied upon, can be planned for, and
otherwise operates in the same way as the existing automatic
extension described in 8 CFR 274a.13(d)(1) and the 2022 TFR.
\188\ See generally INA sec. 274A, 8 U.S.C. 1324a.
---------------------------------------------------------------------------

In addition, DHS has determined that the temporary amendment made
by this rule should remain in the Code of Federal Regulations (CFR) for
an amount of time sufficient to cover the approximately 18-month period
during which the up to 540-day automatic extension will be authorized,
plus an additional 720 days, so that the regulatory provision remains
in the CFR for the entire time that applicants may be relying on this
temporary increase to the regular automatic extension period.\189\ As
such, this TFR will take effect on April 8, 2024, and will be removed
from the CFR on September 20, 2027, that is, approximately 3 years and
6 months (or 1,260 days) after the rule takes effect, although no new
beneficiaries will receive a 540-day automatic extension after
September 30, 2025. Further, as is consistent with current guidance,
applicants should file a renewal EAD application no earlier than 180
days prior to the expiration date of their EAD.
---------------------------------------------------------------------------

\189\ 720 days is the amount of time needed to cover the up to
540-day automatic extension for all EAD renewal applicants eligible
for the automatic extension, including those who timely filed an EAD
renewal application on or before September 30, 2025 but whose EAD
expires within 180 days after September 30, 2025. Such applicants
could be eligible for the up to 540-day automatic extension,
beginning on the day their EAD expires.
---------------------------------------------------------------------------

b. Improve Future Processing Times and Reduce Filing Volume
DHS also considered other factors that may further help to reduce
the renewal EAD application processing times, including the potential
for additional officers based on a potential increase in filing fee
revenue while this TFR is in effect, as well as processing efficiencies
through streamlining certain steps in the processing of renewal EAD
applications and the policy changes described above. Based on the
available data on the pending and incoming volume of renewal EAD
filings, and taking into consideration future variables, such as
increased adjudicative staff and filing fees, USCIS expects to improve
its processing times over the coming years.
Additionally, the automatic extensions provided in this TFR will
extend through the period in which USCIS expects to see a decrease in
filings due to the policy change to provide 5-year validity to certain
categories of EADs. This window of decreased receipts should provide
USCIS the opportunity to significantly decrease backlogs. Based on the
conditions in place at the beginning of FY 2024, USCIS projects that
the implementation of the 5-year-maximum EAD policy will result in a
significant drop in EAD renewal applicants as of September 27, 2025.
The largest volume of EAD categories are C08s, C09s, and

[[Page 24647]]

C10s, which have generally been issued 5-year EADs starting on
September 27, 2023.\190\ This means that EADs in these categories
issued on or after September 27, 2023, will not be facially expiring
until on or after September 26, 2028. Thus, DHS projects, as of the
beginning of FY 2024 that there will be very few EAD renewal applicants
in these categories after September 27, 2025 (just before the beginning
of FY 2026), until early FY 2028. DHS expects that, by the close of the
filing timeframe outlined in this temporary final rule, the usual 180-
day automatic extension period will be sufficient.
---------------------------------------------------------------------------

\190\ In general, USCIS issued EADs for 2 years in these
categories prior to September 27, 2023.
---------------------------------------------------------------------------

In addition, the 540-day filing period will ensure that eligible
EAD renewal applicants who timely file a renewal application will have
a near term solution and will not experience a lapse in employment
authorization and/or documentation starting in May 2024, while USCIS
continues to pursue a long-term solution by soliciting public input and
fully assessing the effects of policy and operational changes described
in this preamble.
4. EAD Renewal Applicants at Risk of Experiencing a Gap in Employment
Authorization or EAD Validity Under This TFR
The data projection in the Regulatory Impact Analysis (``RIA'')
indicates that even with the 540-day automatic extension provided in
this TFR, approximately 260,000 EAD renewal applicants are potentially
at risk of experiencing a gap in employment authorization or proof of
employment authorization.\191\ That is, at the baseline and assuming
that no operational or other policy changes are implemented, of the
projected 689,000 (lower bound estimate) to 824,000 (upper bound
estimates) \192\ of renewal applicants who receive a temporary up to
540-day automatic extension period, about 260,000 renewal EAD
applicants could still lapse between November 2025 and April 2027.\193\
However, this projection is based on data from the beginning of FY 2024
and the conditions in place at that specific time. Because of several
variables, these data projections cannot fully take into account the
complete effect of operational and policy changes described above,
combined with any future changes and operational shifts (such as hiring
additional officers or additional technological changes and operational
shifts that improve processing efficiency) that USCIS plans to
undertake to reduce EAD processing times.\194\ This TFR will provide
USCIS with more time to evaluate the effects of the operational changes
already implemented \195\ and consider and implement additional
operational, policy, and technological changes that may further improve
the overall efficiency of USCIS adjudications. Based on current
projections, this TFR also will ensure that, during the 540 days
following publication of this TFR, none of the affected applicants are
expected to experience a gap in employment authorization and/or EAD
validity because of USCIS processing delays. This TFR will therefore
address the associated harmful effects that gaps in employment
authorization and/or documentation will have for applicants, their
families, their employers, and the economy during that time.
---------------------------------------------------------------------------

\191\ See V.B.2. Table 6 detailing how variation in the inputs
used to the model a baseline affect the range of results of the
rule's estimated impacts in the RIA.
\192\ See V.B.2. Table 6 and Table 7.
\193\ DHS predicts that, based on the high level of C08 filings
who received a 2-year validity EAD prior to the policy change
implementing a 5-year policy, USCIS will experience a spike in
renewal EAD processing times starting around August 2024 and lasting
through October 2025 because of a large amount of C08 renewal
filings. As a result of this spike in processing times, USCIS
projects that approximately 260,000 renewal EAD applicants could
lapse between November 2025 and April 2027 if there is no change to
current conditions.
\194\ Although these data projections cannot fully take into
account the complete effect of possible operational and policy
changes, USCIS does include a sensitivity analysis that considers a
change in officer output by +/-10 percent and +/-15 percent. All
other variables remain constant. See Tables 6A and 6B.
\195\ For example, as explained in section III.B.1. of this
preamble, USCIS expects that the new 5-year EAD practice implemented
in September 2023 will cause certain EAD renewal filings in the
applicable categories to significantly decrease starting in October
2025 and to remain low until the third quarter of FY 2028. There
should be very few EADs in the categories covered by the 5-year EAD
policy with a validity expiration date between September 25, 2025,
and September 26, 2028. Although the main effects of the 5-year EAD
policy change will not occur until October 2025, USCIS projects that
the increased validity periods will lead to a 60 percent reduction
in volumes, on average, and possibly greater for categories who
historically file only one EAD renewal to maintain employment
authorization during the pendency of their primary immigration
benefit. After October 2025, USCIS, as well as applicants filing for
renewal of their EADs, will benefit from the long-term effects of
this policy change as the reduced filing volumes should allow USCIS
to reduce EAD renewal processing times.
---------------------------------------------------------------------------

As part of the development of this rule, DHS considered whether the
temporary automatic extension period in the new 8 CFR 274a.13(d)(6)
should be increased to at least up to 730 days (rather than up to 540
days). Based on the baseline data projections, DHS believes that
increasing the automatic extension period to at least up to 730 days
could ensure that a large part of the approximately 260,000 renewal EAD
applicants who are currently predicted to experience a gap in
employment authorization and/or documentation under the 540-day
automatic extension period would not experience any gaps.
However, although DHS understands that granting an automatic
extension of 540-days might not fully resolve the problem, DHS has
determined to focus on near-term needs of applicants, their families,
and employers by ensuring that, through this TFR, none of them will
imminently or in the near-term experience the harmful effects that gaps
in employment authorization and/or documentation could create. At the
same time, the rule provides DHS with an additional window during which
it can consider long-term solutions by soliciting public comments,
evaluating the effects of ongoing policy and operational changes
described in this preamble, and continuing to identify new strategies
and efficiencies in the future.
Creating a near-term solution with a 540-day extension period is
furthermore appropriate because longer extension periods would create
additional complexities for employers. For example, TPS designations
and associated EAD benefits cannot be granted for longer than 18 months
(which is approximately 540 days).\196\ If USCIS were to extend the
automatic EAD extension period beyond 540 days, it would have to create
a separate provision for TPS-based EAD applicants. Having up to 730
days of an automatic extension period for one group of EAD renewal
applicants and 540 days for others increases the risk of confusion as
employers would be required to understand and adhere to additional
different extension periods depending on eligibility category on the
EAD the worker possessed and when the EAD renewal application was
filed. For example, an employer may have multiple employees who are
employment authorized under the C08 category but, depending on when
their EAD renewal application was filed, those employees may have
different amounts of time for which their employment authorization and
EAD are automatically extended. Even though they all have employment
authorization under C08, those employees who filed an EAD renewal
application before October 27, 2023, would have an automatic extension
up to 540 days, whereas those who filed on or after October 27, 2023,
would have an automatic extension up to 730 days. These variables
increase the risk that an

[[Page 24648]]

employer may make a mistake when verifying employment authorization or
determining when reverification needs to occur. Because employers may
face civil money penalties if they do not properly maintain employment
eligibility verification paperwork or employ a noncitizen without
employment authorization,\197\ the risk of a mistake stemming from
different automatic extension periods is not insignificant.
---------------------------------------------------------------------------

\196\ See INA secs. 244(a)(2), (b)(2), (d), 8 U.S.C.
1254a(a)(2), (b)(2), (d); 8 CFR 244.12.
\197\ See INA sec. 274A(e)(5), 8 U.S.C. 1324a(e)(5).
---------------------------------------------------------------------------

In addition, DHS currently assesses that it is premature to grant
an automatic extension for up to 730 days (or approximately 2 years),
in part because the longer the period of time before an employer has to
reverify a noncitizen employee whose employment authorization is
automatically extended, the greater the risk they could unknowingly
employ someone whose employment authorization has ended.\198\
---------------------------------------------------------------------------

\198\ EAD renewal applications are filed by the noncitizen, so
employers do not know when or if the application is approved.
Employers usually must rely on the employee to provide the
information.
---------------------------------------------------------------------------

Additionally, both employers and applicants are already familiar
either with the normal 180-day extension or the 540-day extension under
the 2022 TFR. The 540-day extension provided under the 2022 TFR
continues to be effective for some applicants until October 15, 2025,
and having other validity periods in this 2024 TFR may be confusing to
applicants, employers, and the public at large. For these reasons, and
because employers would assess the applicability of the auto-extension
based in part on a non-secure document (such as the Form I-797C, Notice
of Action), at this time DHS prefers shorter validity periods for
temporary, non-secure documents.
Also, operationally, while managing 540- and 730-day extensions
might be feasible and could mitigate harms projected after October
2025, the additional complexity, for both USCIS and employers, of
administering different automatic extension durations could delay
issuing or implementing this TFR to address imminent lapses in
employment authorization and EAD validity.
DHS also believes that the automatic extension period of 540 days
is appropriate in scope because of the uncertainties in data
projections. As described above, USCIS' current projections are based
on factors as they exist as of the beginning of FY 2024 and the
conditions in place at that specific time. USCIS' projections become
less certain further into the future because those existing factors
will be impacted as changes and operational shifts arise. For example,
over the course of the coming months, processing times may improve
based on the policy and operational changes described throughout this
preamble and by gaining additional adjudicative efficiencies and
technological changes. As a result, the projection that approximately
260,000 renewal EAD applicants might experience a lapse in employment
starting in October 2025 may exceed the actual number. On the other
hand, there are also unpredictable variables that are out of USCIS's
control, such as the events that resulted in the need for this very
rulemaking. Thus, because of these uncertainties, DHS believes it to be
appropriate to address the imminent and near-term needs of applicants
and their U.S. employers by implementing an up to 540-day automatic
extension period for eligible EAD renewal applications properly filed
during the 540 days after this TFR is published, and to create a
longer-term solution after soliciting additional input and having had
the opportunity to fully assess the effects of USCIS policy and
operational changes described in this preamble.
Finally, DHS notes that providing a 730-day filing period (i.e.,
the period of time, following publication of this rule, during which
the timely filing of an EAD renewal application results in an up to
540-day automatic extension), would not assist those 260,327 EAD
renewal applicants who could still experience a lapse in their EAD
validity. This is because the cause of the remaining 260,000 at-risk
renewal EAD applicants under this TFR is primarily the number of 2-year
initial asylum application EADs (C08) issued in mid- to late-FY 2023,
when USCIS substantially increased its production to comply with the
30-day processing time requirement imposed by the Rosario court
order.\199\ Based on current data predictions, and if staffing levels
and adjudicative efficiencies remain unchanged, renewal of these
initial C08 EADs will be pending longer than the 540-day automatic
extension period. Thus, extending the filing period to 730 days would
not assist these applicants and would not have an impact because they
will already have timely-filed and pending EAD renewal applications. If
their applications are approved, they generally will be granted a 5-
year EAD and/or employment authorization.
---------------------------------------------------------------------------

\199\ See Rosario v. USCIS, 365 F.Supp.3d 1156 (W.D. Wash.
2018).
---------------------------------------------------------------------------

For these reasons, DHS believes an up to 540-day automatic
extension period and a 540-day automatic extension filing period are
appropriate as they are narrowly tailored to serve the imminent short-
term need of eligible EAD renewal applicants and their U.S. employers.
These periods also allow DHS to consider longer-term solutions
following receipt of additional input and assess the effect of ongoing
and future policy and operational changes. If DHS determines that
future regulatory action would be warranted, DHS may issue another
rule. DHS welcomes public comment that would inform any potential
future regulatory actions on this subject, including whether to
permanently extend the automatic extension period to 540 days, or
whether a different permanent extension period should be implemented,
for some or all applicants covered by the automatic extension provision
on either a temporary or permanent basis.

D. Severability

In issuing this TFR, it is DHS's intention that the rule's various
provisions be considered severable from one another to the greatest
extent possible. For instance, if a court of competent jurisdiction
were to hold that the automatic extension may not be applied to a
particular category of renewal EAD applicants or in a particular
circumstance, DHS would intend for the court to leave the remainder of
the rule in place with respect to all other covered persons and
circumstances. DHS's overarching goal is to avoid widescale lapses in
employment authorization and EAD validity that would result in
substantial and unnecessary harm to noncitizens who timely filed for
extensions of employment authorization, their families, their
employers, and the public at large.

IV. Temporary Regulatory Change: 8 CFR 274a.13(d)(5) and 8 CFR
274a.13(d)(6)

A. Adding New 8 CFR 274a.13(d)(6)

With this TFR, DHS is amending 8 CFR 274a.13(d) to add a new
paragraph (6) that will be in effect temporarily until September 20,
2027. Under the new paragraph, DHS is increasing the automatic
extension period for employment authorization and/or EAD validity of up
to 180 days (described in 8 CFR 274a.13(d)(1)) to a period of up to 540
days for renewal applicants eligible to receive an automatic extension
who properly file a renewal EAD application on or after October 27,
2023, and on or before September 30, 2025 and whose application is
pending

[[Page 24649]]

during the 18-month \200\ period beginning April 8, 2024, and ending
September 30, 2025. Automatic extensions of employment authorization
and/or EAD validity will revert to the up to180-day period for those
eligible applicants who timely file renewal EAD applications after
September 30, 2025. The increased automatic extension period will apply
to eligible renewal applicants who timely file their EAD applications
on or before the last day of the 18-month period.
---------------------------------------------------------------------------

\200\ For ease of reference, DHS sometimes refers to the
approximate period of 18 months. However, the precise number of days
is 540.
---------------------------------------------------------------------------

Similar to the 180-day automatic extension period provided by 8 CFR
274a.13(d)(1), the increased automatic extension period of up to 540
days established by this TFR generally will automatically terminate the
earlier of up to 540 days after the expiration date of the EAD, or upon
issuance of notification of a denial on the renewal EAD request even if
this date is after September 30, 2025.
Moreover, 8 CFR 274a.13(d)(6) will remain in the CFR for an
additional 720 days after this 540-day period, until September 20,
2027, to ensure that renewal applicants who are already within their up
to 540-day automatic extension period as of September 30, 2025, will
not get cut off from any remaining employment authorization and/or EAD
validity that is over 180 days (the normal automatic extension period
under 8 CFR 274a.13(d)(1) but instead will be able to take full
advantage of the 540-day period.
Similar to 8 CFR 274a.13(d)(4), this TFR provides that an EAD that
appears on its face to be expired (``facially expired'') is considered
unexpired under this rule for up to 540 days from the expiration date
on the front of the EAD when combined with a Notice of Action (Form I-
797C) indicating timely filing of the renewal EAD application and the
same employment eligibility category as stated on the facially expired
EAD (or in the case of an EAD and I-797C notice that each contains
either an A12 or C19 TPS category code, the category codes need not
match).\201\ While the current provision at 8 CFR 274a.13(d)(4), and,
likewise, the provision in this TFR, do not require that the qualifying
Notices of Action specify the automatic extension period, in practice,
USCIS issues a Form I-797C Notice of Action to all renewal applicants
with general information regarding who is eligible for an automatic
extension and currently includes an explanation of the up to 180-day
automatic extension period. On and after April 8, 2024, USCIS plans to
issue Form I-797C Notices of Action with an explanation of the up to
540-day automatic extension period. USCIS does not plan to issue
updated Form I-797C notices to eligible applicants who filed their
renewal EAD application before April 8, 2024. However, even Form I-797C
notices for an EAD application filed after October 26, 2023, that refer
to a 180-day automatic extension still meet the regulatory
requirements. Therefore, individuals in the categories covered by this
rule who are issued Form I-797C notices with a Received Date of October
27, 2023, through the day preceding April 8, 2024 that refer to a 180-
day extension, along with their qualifying EADs, still receive the
extension of up to 540 days from the date on the face of the EAD under
this rule. USCIS will update the web page on the USCIS website that is
referenced in the current Form I-797C receipt notice to reflect the
change in the automatic extension period. The public should refer to
this web page when determining whether a Form I-797C Notice of Action,
if presented with the facially expired EAD, is acceptable to show that
the EAD validity is extended. Employers completing Form I-9 may attach
a copy of the web page with the employee's Form I-9 to document the
extension of employment authorization and/or EAD validity. USCIS will
also update I-9 Central on the USCIS website to provide employees and
employers with specific guidance on Form I-9 completion, including any
required notations indicating the above-described extension of
employment authorization and/or EAD validity, in such cases. The
automatic extension established by this rule applies to EADs as such;
therefore, if another agency accepts unexpired EADs for any purpose
(such as establishing identity or, in some situations, immigration
status), then the agency should generally accept the EADs that are
automatically extended under this rule. This applies to benefit
granting agencies that are registered to use the SAVE \202\ program to
verify immigration status, because SAVE can verify a benefit
applicant's immigration status using an automatically extended EAD.
---------------------------------------------------------------------------

\201\ As it is currently the case with the up-to 180-day
automatic extension, if an adjustment of status applicant's (C09)
EAD card is combined with the advance parole authorization, i.e.,
the applicant is issued a combo card (in this case, the EAD card
itself has an annotation ``SERVES AS I-512 ADVANCE PAROLE''),
Similarly, the 540-day automatic extension provided by the 2022 TFR,
as well as the up-to 540-day automatic extension provided by this
rule, do not apply to the advance parole part of the applicant's
combo card.
\202\ SAVE is a program administered by USCIS and is used by
Federal, state and local benefit granting agencies to verify the
immigration status of their benefit applicants in order for the
agency to determine eligibility for the benefits they administer.
See <a href="https://www.uscis.gov/save">https://www.uscis.gov/save</a> (last visited Jan.19, 2024).
---------------------------------------------------------------------------

This rule does not modify the current reverification requirements
an employer must follow for Form I-9 at 8 CFR 274a.2(b)(1)(vii) that
apply to automatic extensions, except that this rule temporarily
extends the automatic extension period in 8 CFR 274a.13(d) from up to
180 days to up to 540 days. Therefore, to complete Form I-9 for new
employment, the employee and employer should use the extended
expiration date to complete Sections 1 and 2 of the Form I-9 and
reverify once the automatic extension period expires.\203\ For current
employment, the employer should update the previously completed Form I-
9 to reflect the extended expiration date based on the automatic EAD
extension while the renewal is pending and reverify once the automatic
extension expires.\204\
---------------------------------------------------------------------------

\203\ See 8 CFR 274a.2(b)(1)(vii); see also USCIS, DHS,
``Automatic Extensions Based on a Timely Filed Application to Renew
Employment Authorization and/or Employment Authorization Document''
<a href="https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274/50-automatic-extensions-of-employment-authorization-andor-employment-authorization-documents-eads-in/51-automatic-extensions-based-on-a-timely-filed-application-to-renew-employment-authorization">https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274/50-automatic-extensions-of-employment-authorization-andor-employment-authorization-documents-eads-in/51-automatic-extensions-based-on-a-timely-filed-application-to-renew-employment-authorization</a> (last visited Oct. 27, 2023).
\204\ Id.
---------------------------------------------------------------------------

Under this TFR, just as under existing 8 CFR 274a.13(d)(3), DHS
will retain the ability to otherwise terminate any employment
authorization or EAD, or extension period for such employment
authorization or document, by written notice to the applicant, by
notice to a class of noncitizens published in the Federal Register, or
as provided by statute or regulation, including 8 CFR 274a.14.\205\
---------------------------------------------------------------------------

\205\ Therefore, for example, in situations where the underlying
status that provides employment authorization would expire prior to
540 days, USCIS may include specific information on the applicant's
Form I-797C receipt notice as to how long the automatic extension of
the individual's EAD will last.
---------------------------------------------------------------------------

B. Amending 8 CFR 274a.13(d)(5)

To avoid confusion between the automatic extension period granted
under 8 CFR 274a.13(d)(5) and period granted under newly added 8 CFR
274a.13(d)(6), DHS is amending existing 8 CFR 274a.13(d)(5) by revising
the heading in the paragraph to reflect that the paragraph applies to
renewal applications properly filed on or before October 26, 2023.\206\
---------------------------------------------------------------------------

\206\ See 8 CFR 274a.13(d)(5) heading.
---------------------------------------------------------------------------

With this TFR, DHS is not extending or otherwise amending the
provisions in

[[Page 24650]]

8 CFR 274a.13(d)(5). As explained in the 2022 TFR, the filing period
for the temporary increase of the automatic extension under 8 CFR
274a.13(d)(5) ended on October 26, 2023, after which the automatic
extension period reverted to up to 180 days.\207\ The increased
automatic extension period under 8 CFR 27

[…truncated; see source link]

View on FederalRegister.gov →Plain-text source

Indexed from Federal Register on April 8, 2024.

This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.