Rule2024-28584
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
December 13, 2024
Effective
January 13, 2025
Issuing agencies
Homeland Security Department
Abstract
This final rule amends DHS regulations to permanently increase the automatic extension period for expiring employment authorization and/or Employment Authorization Documents (Forms I-766 or EADs) for certain renewal applicants who have timely filed Form I-765, Application for Employment Authorization, from up to 180 days to up to 540 days. After two temporary rules, DHS is finalizing the recent temporary rule and making the increase permanent to help prevent eligible renewal EAD applicants from experiencing a lapse in employment authorization and/or the validity of their EAD as a result of lengthy USCIS processing times.
Full Text
<html>
<head>
<title>Federal Register, Volume 89 Issue 240 (Friday, December 13, 2024)</title>
</head>
<body><pre>
[Federal Register Volume 89, Number 240 (Friday, December 13, 2024)]
[Rules and Regulations]
[Pages 101208-101267]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-28584]
[[Page 101207]]
Vol. 89
Friday,
No. 240
December 13, 2024
Part III
Department of Homeland Security
-----------------------------------------------------------------------
8 CFR Part 274a
Increase of the Automatic Extension Period of Employment Authorization
and Documentation for Certain Employment Authorization Document Renewal
Applicants; Final Rule
Federal Register / Vol. 89, No. 240 / Friday, December 13, 2024 /
Rules and Regulations
[[Page 101208]]
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 274a
[CIS No. 2785-24; DHS Docket No. USCIS-2024-0002]
RIN 1615-AC78
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 (``USCIS''),
Department of Homeland Security (``DHS'').
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule amends DHS regulations to permanently increase
the automatic extension period for expiring employment authorization
and/or Employment Authorization Documents (Forms I-766 or EADs) for
certain renewal applicants who have timely filed Form I-765,
Application for Employment Authorization, from up to 180 days to up to
540 days. After two temporary rules, DHS is finalizing the recent
temporary rule and making the increase permanent to help prevent
eligible renewal EAD applicants from experiencing a lapse in employment
authorization and/or the validity of their EAD as a result of lengthy
USCIS processing times.
DATES: This final rule is effective January 13, 2025.
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). U.S. Citizenship and Immigration Services
(USCIS), DHS, 5900 Capital Gateway Drive, MD, Camp Springs, 20746;
telephone (240) 721-3000 (this is not a toll-free number).
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
A. Purpose of the Regulatory Action
B. Summary of Legal Authority
C. Summary of Regulatory Changes
D. Severability
E. Summary of Costs and Benefits
II. Background
A. Legal Authority
B. Legal Framework for Employment Authorization and Verification
1. Types of Employment Authorization: 8 CFR 274a.12(a), (b), and
(c)
2. The Application Process for Obtaining Employment
Authorization and EADs
3. Automatic Extensions of EADs for Renewal Applicants and
Related Employment Eligibility Verification Requirements for
Employers
i. Renewing Employment Authorization and/or EADs
ii. Minimizing the Risk of Gaps in Employment Authorization and/
or EAD Validity Through Automatic Extensions
C. 2022 Temporary Final Rule
1. Overview
2. Impact of the 2022 Temporary Final Rule
D. 2024 Temporary Final Rule
1. Overview
2. Impact of the 2024 Temporary Final Rule
III. Purpose and Discussion of the Final Rule
A. Circumstances Resulting in the 2022 Temporary Final Rule
1. USCIS Enjoined From Increasing Its Filing Fees
2. Public Health Emergency Caused by the COVID-19 Pandemic
3. Unprecedented Increase in EAD Application Filings
4. Combined Impact on Renewal EAD Application Processing Times
B. Circumstances Resulting in the 2024 Temporary Final Rule
1. Overview
2. Surge in Initial EAD Application Filings by Pending Asylum
Applicants
3. Significant Increase in Referrals to USCIS for Credible Fear
Assessments
4. Impact of Asylum Filing Surges and Backlogs on C08 Renewals
5. Additional Designations for Temporary Protected Status
6. Combined Impact on Renewal EAD Application Processing Times
C. Automatic Extension Period of up to 180 Days in Current 8 CFR
274a.13(d)(1) Is Insufficient
IV. Discussion of Public Comments
A. Summary of Comments on the 2024 TFR
B. General Support for the 2024 TFR
C. General Opposition to the 2024 TFR
D. Legal Authority
E. Purpose of the 2024 TFR
F. Positive Impacts of the 2024 TFR
G. Impacts on U.S. Employers and the Economy
1. Provide Stability and Decrease Burdens for U.S. Employers
2. Contributions to Local, State, and U.S. Economy
3. Alleviate Shortages in the U.S. Labor Market
H. Impacts on the U.S. Government
I. Allow a Second 540-Day Automatic Extension Period for
Noncitizens Who Received the 2022 TFR Automatic Extension
J. Make Permanent and Extend the Temporary Automatic Extension
Period Beyond 540 Days
1. Permanent Increase to the Automatic Extension Period
i. Increase Necessary To Address Processing Backlogs
ii. Benefit to USCIS
iii. Benefit to Workers
iv. Benefit to Employers
2. Increase the Automatic Extension Period to 730 Days
K. Expand EAD Categories Eligible for Automatic Extension
L. EAD Validity Period
M. Automatic Renewals
N. Application, Adjudication, and Notification Processes
1. General Comments on Adjudication and Application Times and
Prioritization of Reviews
i. EAD Processing Resources and Priorities
ii. Decentralizing of EAD Processing and Other Processing
Recommendations
iii. General Processing
iv. Notification to Applicants
v. Suggestions To Improve USCIS' Systems or Applicant-USCIS
Communication
2. Transparency, Clarity, and Outreach to External Stakeholders
3. Alternative Actions
4. Regulatory Impact Analysis
V. Regulatory Changes: 8 CFR 274a.2(b)(1)(vii), 8 CFR 274a.13(d)(1),
(d)(3) and 8 CFR 274a.13(d)(6); Authority Citation
A. Modifying 8 CFR 274a.2(b)(1)(vii)
B. Revising 8 CFR 274a.13(d)(1) and (d)(3), and Removing (d)(5)
and (d)(6)
C. Revising Authority Citations for 8 CFR Part 274a
VI. Statutory and Regulatory Requirements
A. Executive Order 12866 (Regulatory Planning and Review) and
Executive Order 13563 (Improving Regulation and Regulatory Review)
1. No Action Baseline--Effects of This Final Rule
2. Without TFR Baseline--Effects of the 2022 and 2024 TFRs
i. Introduction
ii. Background and Population
iii. Impact Analysis
a. Module A. Earnings of Renewal EAD Applicants
b. Module B. Impacts That Could Accrue to Labor Earnings
1. Earnings Impact to EAD holders
2. Labor Turnover Cost Impacts
c. Module C. Monetized Impacts for the 2022 and 2024 TFRs, FY
2023 Through FY 2027
d. Module D. Other Impacts
3. Alternatives Considered
B. Regulatory Flexibility Act
C. Unfunded Mandates Reform Act of 1995
D. Small Business Regulatory Enforcement Fairness Act of 1996
(Congressional Review Act)
E. Executive Order 13132 (Federalism)
F. Executive Order 12988 (Civil Justice Reform)
G. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
H. National Environmental Policy Act
I. Family Assessment
J. Paperwork Reduction Act
VII. List of Subject and Regulatory Amendments
I. Executive Summary
A. Purpose of the Regulatory Action
This final rule amends 8 CFR 274a.13(d) and the related employment
eligibility verification provision at 8 CFR 274a.2(b)(1)(vii) to
permanently
[[Page 101209]]
increase the automatic extension period for employment authorization
and the validity of certain EADs from up to 180 days to up to 540 days.
This automatic extension period is available to certain applicants who
timely filed a Form I-765, Application for Employment Authorization, to
renew their EADs.
Since the promulgation of 8 CFR 274a.13(d) with its 180-day
automatic extension period in 2016,\1\ DHS has issued two temporary
final rules (TFRs) temporarily increasing the automatic extension
period to up to 540 days in order to prevent a substantial number of
renewal EAD applicants from experiencing a lapse in their employment
authorization and/or documentation.\2\ With the 2024 TFR that is
currently in effect, DHS focused on near-term needs of renewal
applicants, their families, and employers by substantially reducing the
number of applicants who would experience harmful effects created by
gaps in their employment authorization and/or documentation.\3\ The
2024 TFR also provided DHS and USCIS with additional time to consider
long-term solutions by soliciting public comments, evaluating the
effects of policy and operational changes, and continuing to identify
new ways to reduce renewal EAD application processing times.\4\
---------------------------------------------------------------------------
\1\ 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).
\2\ See 87 FR 26614 (May 4, 2022) (2022 TFR); 89 FR 24628 (Apr.
8, 2024) (2024 TFR).
\3\ 89 FR 24628, 24629 (Apr. 8, 2024).
\4\ See 89 FR 24628, 24629 (Apr. 8, 2024).
---------------------------------------------------------------------------
After careful consideration of the public comments submitted in
connection with the 2024 TFR, as well as the operational realities
associated with the events described in the 2024 TFR, DHS has
determined that the up to 180-day automatic extension under 8 CFR
274a.13(d) does not provide USCIS enough time to address large spikes
in EAD filings and other circumstances that may occur in the future and
increase renewal EAD application processing times. DHS believes that a
substantial number of renewal EAD applicants may, in the future,
continue to face uncertainty about the risk of losing employment
authorization and/or EAD validity through no fault of their own because
of USCIS processing delays resulting from sporadic spikes in EAD
filings or other unanticipated circumstances. The potential for gaps in
employment authorization and EAD validity periods also creates
uncertainty among U.S. employers.
In addition, lapses in employment authorization and EAD validity
can result in substantial harm to noncitizens, their families, their
employers, and the public at large. To help prevent the harmful effects
of these gaps, DHS is amending its existing regulations to permanently
increase the automatic extension period applicable to expiring
employment authorization and/or EADs for certain renewal applicants
from up to 180 days to up to 540 days from the expiration date stated
on their EADs. This final rule will be effective January 13, 2025.
USCIS will also continue its efforts to reduce processing times for
renewal EAD applications.
B. Summary of Legal Authority
The authority for the Secretary of Homeland Security (Secretary) to
issue this final rule 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.
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. Section 101(b)(1)(F) of the Homeland
Security Act (HSA), 6 U.S.C. 111(b)(1)(F), 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.''
C. Summary of Regulatory Changes
Following careful consideration of the public comments received in
response to the 2024 TFR, DHS is making the following changes to its
employment authorization and verification regulations:
<bullet> Amending existing 8 CFR 274a.2(b)(1)(vii): DHS is deleting
the language ``for up to 180 days,'' so that the paragraph describes
the automatic extension period simply by referring to 8 CFR 274a.13(d)
only. DHS is not changing the current reverification requirements an
employer must follow for Form I-9, Employment Eligibility
Verification,\5\ at 8 CFR 274a.2(b)(1)(vii) that apply to automatic
extensions. Additionally, to simplify the regulatory text, DHS is
making an editorial change by eliminating the section symbol before the
citation to section 274a.13(d) and replacing it with the complete CFR
citation, i.e., 8 CFR 274a.13(d).
---------------------------------------------------------------------------
\5\ Employers must verify the identity and employment
authorization of their new hires by examining documentation that
evidences such employment eligibility and completing Form I-9. See
INA sec.274A(b)(1)(A), 8 U.S.C. 1324a(b)(1)(A).
---------------------------------------------------------------------------
<bullet> Amending existing 8 CFR 274a.13(d)(1): DHS is amending the
provision by combining the content previously contained in 8 CFR
274a.13(d)(1), (d)(5) and (d)(6). The amended paragraph provides that
the automatic extension period under 8 CFR 274a.13(d)(1) (in effect
prior to the effective date of this final rule) for applicants who had
their renewal EAD applications filed and adjudicated prior to May 4,
2022, was 180 days. The amended provision also provides that the
automatic extension period for renewal EAD applications pending on, or
filed on or after May 4, 2022, is up to 540-days. Furthermore, DHS is
clarifying that the up to 540-day EAD automatic extension period starts
the day after the expiration date found on the face of the EAD.
<bullet> 8 CFR 274a.13(d)(1)(i): DHS is amending paragraph
(d)(1)(i) to clarify that a renewal EAD application for Temporary
Protected Status (TPS)-related EADs is timely filed under 8 CFR
274a.13(d)(1) when it is filed during the re-registration filing period
in the applicable Federal Register notice. (Previously, the regulations
contained a reference to the filing period; DHS is adding the term
``re-registration for clarity.)
<bullet> Amending existing 8 CFR 274a.13(d)(3): DHS is eliminating
the reference to the up to 180-day automatic extension period and
replacing it with the up to 540-day period.
<bullet> Removing 8 CFR 274a.13(d)(5) and (d)(6): DHS is removing
the provisions that were added as part of the 2022 TFR and the 2024
TFR. DHS has incorporated applicable content as part of the amendments
made to 8 CFR 274a.13(d)(1).
<bullet> Revising the authority citations to 8 CFR part 274a: DHS
is revising the authority citation to 8 CFR part 274a by adding 8
U.S.C. 1105a, which was inadvertently removed by another DHS rule. DHS
is furthermore amending the authority by adding reference to INA 208,
214, and 244, 8 U.S.C. 1158, 1184, and 1254a, that serve as sources of
statutory authority for employment authorization.
D. Severability
In issuing this final rule, it is DHS's intention that the rule's
various provisions be considered severable from one another to the
greatest extent possible. For example, 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
[[Page 101210]]
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 reduce the
likelihood of lapses in employment authorization and/or EAD validity
that would result in substantial and unnecessary harm to noncitizens
who timely applied for a renewal EAD in certain categories, their
families, their employers, and the public at large. This final rule
will provide greater financial stability for eligible renewal EAD
applicants and maintain continuity of business operations for their
employers.
E. Summary of Costs and Benefits
This final rule--which finalizes the 2024 TFR and permanently
increases the automatic extension period for employment authorization
and the validity of certain EADs from up to 180 days to up to 540
days--will provide long-term predictability and reduced anxiety around
job stability for EAD renewal applicants. When unforeseen future
circumstances cause processing times to extend beyond 180 days and
result in large scale lapses in renewal EADs, this permanent adjustment
of the automatic extension period to 540 days will result in benefits
and cost savings, such as stabilized earnings and avoided labor
turnover costs.
USCIS examined the benefits of the 2022 TFR and 2024 TFR and
estimates that from FY 2023 to FY 2027 these rules result in average
stabilization of earnings worth $10.0 billion to employment-authorized
noncitizens and average cost savings of $3.5 billion to U.S. employers
from avoided labor turnover and are expected to yield an average $1.1
billion in employment tax transfer payments using a 2 percent discount
rate (see Table 17 for more information). While the EAD end dates are
known to USCIS and can be used to accurately project at what date an
EAD might lapse if not adjudicated, there is uncertainty around the
monetized, economic impacts due to possible changes in the timing of
EAD renewal filing behavior, adjudication resources and completion
rates, and the duration of lapses experienced by workers of varying
wages in the absence of any changes to the automatic extension period.
The Regulatory Impact Analysis discusses the low and high-end estimates
that bound the expected impacts described above.
II. Background
Since the promulgation of 8 CFR 274a.13(d) in 2016,\6\ authorizing
the up to 180-day automatic extension period for certain renewal EAD
applicants, USCIS' ability to process both initial and renewal EAD
applications within USCIS' targeted processing times has been adversely
impacted by a variety of unforeseen events and circumstances.\7\ As a
result, DHS has found it necessary to take actions to reduce the
likelihood that applicants for renewal EADs who are eligible for an
automatic extension of their EAD validity under 8 CFR 274a.13(d)
experience lapses in their employment authorization and/or proof of
employment authorization because of USCIS processing delays and through
no fault of their own.\8\ DHS has found that such lapses in employment
authorization and/or EAD validity could 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.\9\
---------------------------------------------------------------------------
\6\ See 81 FR 82398 (Nov. 18, 2016).
\7\ See 87 FR 26614, 26617-26 (May 4, 2022) (identifying USCIS'
precarious fiscal status, the COVID-19 public health emergency, and
dramatic increases in Form I-765 filings as some of the unforeseen
events and circumstances); 89 FR 24628, 24634-40 (Apr. 8, 2024)
(identifying, in addition to many of the same events and
circumstances as the 2022 TFR, an increase in referrals to USCIS for
Credible Fear Assessment and an increase in affirmative and
defensive asylum filings as contributing factors to an increase in
average processing time).
\8\ See 87 FR 26614 (May 4, 2022); 89 FR 24628 (Apr. 8, 2024).
\9\ These findings were made as part of the 2022 and 2024 TFRs.
See 87 FR 26614, 26636 (May 4, 2022), 89 FR 24628, 24655 (Apr. 8,
2024), for findings related to potential economic impacts caused by
lapsed employment authorization and/or documentation.
---------------------------------------------------------------------------
In 2021, a surge in EAD applications, coupled with operational
challenges exacerbated by the COVID-19 pandemic, resulted in a
significant increase in renewal EAD application processing times.\10\
The processing times increased to such a level that the 180-day
automatic extension for certain pending renewal EAD applications under
8 CFR 274a.13(d) 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.\11\
---------------------------------------------------------------------------
\10\ See 87 FR 26614, 26618 (May 4, 2022) (explaining that the
COVID-19 pandemic exacerbated USCIS' precarious financial situation,
while a sudden and dramatic increase in Form I-765 filings further
hampered USCIS' efforts to return to a steady pace in
adjudications).
\11\ See 87 FR 26614, 26640 (May 4, 2022).
---------------------------------------------------------------------------
In May 2022, DHS published a temporary final rule (``2022 TFR'')
that, for certain renewal EAD applications filed during a 540-day
period that ended on October 26, 2023, increased the automatic
extension period from up to 180 days to up to 540 days.\12\ This
measure helped minimize gaps in employment authorization and/or EAD
validity for eligible renewal EAD applicants, while giving USCIS the
opportunity to address its backlogs through operational and sub-
regulatory measures and work toward its goal of returning to regular 3-
month processing times.
---------------------------------------------------------------------------
\12\ See 87 FR 26614 (May 4, 2022).
---------------------------------------------------------------------------
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.\13\ Not only did the
2022 TFR immediately restore employment authorization and/or EAD
validity 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 and/or
employment authorization documentation based on renewal EAD
applications filed from May 4, 2022 through October 26, 2023.\14\
---------------------------------------------------------------------------
\13\ See 89 FR 24628, 24634 (Apr. 8, 2024).
\14\ Id.
---------------------------------------------------------------------------
However, for reasons fundamentally unrelated to the reasons stated
in the 2022 TFR, the renewal EAD processing backlog grew despite USCIS'
best efforts. In the middle of FY 2023, EAD application filings began
to increase substantially. The historic 1 million application increase
in initial and renewal EAD filings, compounded by the lack of a filing
fee increase, the adjudicative demands of USCIS' responses to global
humanitarian crises, and other increases in immigration benefit filings
and court-ordered processing timeframes, created an insurmountable
operational strain and increase in renewal EAD application processing
times.\15\ The processing times were at such a level that the 180-day
automatic extension period for certain renewal EAD applications
remained insufficient to prevent a large
[[Page 101211]]
number of lapses projected to start in May 2024.
---------------------------------------------------------------------------
\15\ The continued lengthy processing times was primarily due to
a substantial increase in the number of initial EAD applications
based on pending asylum applications (C08) that began in March 2023
and litigation regarding rules governing EAD applications that
require USCIS to process initial EAD applications for asylum
applicants within 30 days of filing. Other causes included a surge
in initial EAD applications filed by individuals with pending asylum
applications, the allocation of USCIS personnel to assist with
historically high levels of encounters at the southwest land border
between the ports of entry, and additional TPS designations in FY
2022 and FY 2023.
---------------------------------------------------------------------------
Accordingly, DHS again took steps to help prevent certain renewal
EAD applicants from experiencing a lapse in their employment
authorization and/or documentation while their renewal applications
remain pending while continuing to implement other solutions to return
processing times to target levels. In April 2024, DHS published a
temporary final rule (``2024 TFR'') that, for certain renewal EAD
applications filed from October 27, 2023, through September 30, 2025,
again temporarily increased the automatic extension period from up to
180 days to up to 540 days.\16\
---------------------------------------------------------------------------
\16\ See 89 FR 24628 (Apr. 8, 2024). The 2024 TFR increased the
automatic extension period from up to 180 days to up to 540 days for
applicants who properly filed their EAD renewals on or after October
27, 2023, and that remained pending on May 4, 2024, as well as
renewal EAD applications filed from May 4, 2024, through September
30, 2025.
---------------------------------------------------------------------------
USCIS projected that without the 2024 TFR, approximately 800,000
renewal applicants would have been in danger of losing their employment
authorization and/or documentation in the period beginning May 2024 and
ending March 2026.\17\ If faced with a disruption of their employment
authorization and/or documentation, these renewal applicants may have
lost their jobs through no fault of their own, and their employers
would have been faced with finding replacement workers, an undue burden
that would have been exacerbated during a time when the U.S. economy
has been experiencing more job openings than available workers.\18\
---------------------------------------------------------------------------
\17\ See 89 FR 24628, 24660 (Table 7) (Apr. 8, 2024).
\18\ See 89 FR 24628, 24630 (Apr. 8, 2024).
---------------------------------------------------------------------------
With the 2024 TFR, DHS focused on near-term needs of applicants,
their families, and employers by ensuring that, through the 2024 TFR, a
substantially smaller number of applicants would experience near-term
harmful effects that gaps in employment authorization and/or
documentation could create. The 2024 TFR averted many of these imminent
adverse consequences and provided DHS and USCIS with an additional
window to consider long-term solutions by soliciting public comments,
evaluating the effects of policy and operational changes, and
continuing to identify new strategies and efficiencies in light of
ongoing developments.\19\
---------------------------------------------------------------------------
\19\ See 89 FR 24628, 24629 (Apr. 8, 2024).
---------------------------------------------------------------------------
After carefully considering public comments, as well as the
operational realities associated with the changes described in the 2024
TFR, DHS has determined that the automatic extension period should be
permanently increased from up to 180 days to up to 540 days. This final
rule will be effective January 13, 2025.
Permanently increasing the automatic extension period will 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 because of
circumstances that are beyond the control of the applicant.
A. Legal Authority
The Secretary of Homeland Security's (Secretary) authority for the
regulatory amendments made in this final rule 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 rule 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.\20\ Further
authority for this rule is found in:
---------------------------------------------------------------------------
\20\ Although several provisions of the INA discussed in this
final rule 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, 586 U.S. 392, 397 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(b) of the INA, 8 U.S.C. 1324a(b), which
provides for the employment verification system and outlines employment
eligibility verification requirements.
<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; \21\ and
---------------------------------------------------------------------------
\21\ Courts have acknowledged that Congress delegated authority
to DHS to grant or extend employment authorization to certain
classes of noncitizens. See, 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.''). DHS is exercising
this discretionary authority consistent with all applicable
authorities, including the referenced authorities in the HSA, and
sections 103, 208, 214, 244 and 274A(h)(3) of the INA, 8 U.S.C.
1103, 1158, 1184, 1254a and 1324a(h)(3), as well as the
Administrative Procedure Act at 5 U.S.C. 553. See Loper Bright
Enterprises v. Raimondo, 144 S. Ct. 2244, 2263 (2024) (``In a case
involving an agency, of course, the statute's meaning may well be
that the agency is authorized to exercise a degree of discretion.
Congress has often enacted such statutes. For example, some statutes
`expressly delegate' to an agency the authority to give meaning to a
particular statutory term. Others empower an agency to prescribe
rules to `fill up the details' of a statutory scheme, or to regulate
subject to the limits imposed by a term or phrase that `leaves
agencies with flexibility,' such as `appropriate' or
`reasonable.''') (internal citations omitted).
---------------------------------------------------------------------------
<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 and Verification
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: \22\
---------------------------------------------------------------------------
\22\ 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
[[Page 101212]]
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.\23\
---------------------------------------------------------------------------
\23\ 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.\24\ These
noncitizens are issued an Arrival-Departure Record (Form I-94)
indicating their employment-authorized status in the United States and
in most cases do not file separate requests for evidence of employment
authorization.
---------------------------------------------------------------------------
\24\ 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.\25\
---------------------------------------------------------------------------
\25\ 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
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 the
Form I-765 instructions,\26\ an EAD application must be properly filed
with USCIS (with fee or fee waiver, as applicable) to receive
employment authorization and/or an EAD.\27\ 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 approved 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 applicable form instructions or as
announced by USCIS.\28\ 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.\29\
---------------------------------------------------------------------------
\26\ See DHS, USCIS, 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.
\27\ See 8 CFR 103.2(a) and 8 CFR 274a.13(a). Some applicants
who are employment authorized incident to status (e.g., asylees,
refugees, TPS beneficiaries) may file an EAD application to obtain
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.
\28\ 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 DHS,
USCIS, Employment Authorization for Certain H-4, E Dependent Spouses
(last reviewed/updated Aug. 2, 2024), <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 Oct. 23, 2024).
\29\ See 8 CFR 274.12(a) and (c).
---------------------------------------------------------------------------
3. Automatic Extensions of EADs for Renewal Applicants and Related
Employment Eligibility Verification Requirements for Employers
i. Renewing Employment Authorization and/or EADs
Temporary employment authorization and EADs generally are not valid
indefinitely but instead expire after a specified period of time.\30\
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).\31\ 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 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 Form I-
9, Employment Eligibility Verification. 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.\32\
---------------------------------------------------------------------------
\30\ See 8 CFR 274a.13(b). But see 8 CFR 274a.14 (setting forth
the bases for termination or revocation of employment
authorization).
\31\ See 8 CFR 274a.14(a)(1)(i).
\32\ The employee must present the employer with acceptable
documents evidencing identity and employment authorization. The
lists of acceptable documents can be found on Form I-9. See DHS,
USCIS, 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 Oct. 23, 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 DHS, USCIS, 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 INA sec. 274A, 8 U.S.C. 1324a.
---------------------------------------------------------------------------
Those seeking to renew previously granted employment authorization
or obtain new EADs must file renewal EAD applications with USCIS in
accordance with the form instructions.\33\
---------------------------------------------------------------------------
\33\ See 8 CFR 103.2, 106.2, and 274a.13(a); see DHS, USCIS,
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 Oct. 23, 2024). In reviewing the
EAD application, USCIS ensures that the fee was paid, a fee waiver
was granted, or a fee exemption applies.
---------------------------------------------------------------------------
ii. 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
[[Page 101213]]
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. In
addition, under 8 CFR 274a.2(b)(1)(vii), if an employee's employment
authorization and/or documentation expires, their employer must
reverify or update the employee's Form I-9 to reflect that the employee
is still authorized to work in the United States; otherwise, the
employee can no longer work. No later than the date employment
authorization expires, employees must present unexpired acceptable
documentation that demonstrates continued authorization to work.\34\
The employer is required to reverify or update information on the
employee's Form I-9 to record the employee's evidence of continued
employment authorization. Employers who fail to properly complete Forms
I-9 including reverification are subject to civil money penalties for
paperwork violations.\35\ Employers must terminate employment of
employees who have gaps in their employment authorization documentation
and are not able to reverify or risk being fined under the employer
sanctions provisions in section 274A of the INA, 8 U.S.C. 1324a.
---------------------------------------------------------------------------
\34\ See DHS, USCIS, M-274, Handbook for Employers, 6.1,
Reverifying Employment Authorization for Current Employees, <a href="https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274/60-completing-supplement-b-reverification-and-rehire-of-form-i-9/61-reverifying-employment-authorization-for-current-employees">https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274/60-completing-supplement-b-reverification-and-rehire-of-form-i-9/61-reverifying-employment-authorization-for-current-employees</a>
(last visited Aug. 2, 2024).
\35\ See INA sec. 274A(e)(5), 8 U.S.C. 1324a(e)(5).
---------------------------------------------------------------------------
Beyond the financial and economic impact that gaps in employment
authorization or proof thereof creates for the noncitizen and the
employer, if the noncitizen engages in unauthorized employment, such
activity may render a noncitizen removable,\36\ render a noncitizen
ineligible for future benefits such as adjustment of status,\37\ and/or
subject the employer to civil and/or criminal penalties.\38\
---------------------------------------------------------------------------
\36\ See, e.g., INA sec. 237(a)(1)(C), 8 U.S.C. 1227(a)(1)(C); 8
CFR 214.1(e).
\37\ See INA sec. 245(c), (k); 8 U.S.C. 1255(c), (k).
\38\ 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.\39\ 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
\40\ removing the provision and replacing it with the current 8 CFR
274a.13(d).
---------------------------------------------------------------------------
\39\ See 8 CFR 274a.13(d) (2016).
\40\ 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,\41\ and in
light of processing times and possible filing surges,\42\ 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.\43\ To receive the automatic
extension, an eligible renewal applicant must meet the following
conditions:
---------------------------------------------------------------------------
\41\ 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.'').
\42\ 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.''), 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).'').
\43\ 8 CFR 274a.13(d); see also 81 FR 82398, 82455-82463 (Nov.
18, 2016).
---------------------------------------------------------------------------
<bullet> The renewal applicant timely files an application to renew
the employment authorization and/or EAD before the EAD expires; \44\
---------------------------------------------------------------------------
\44\ 8 CFR 274a.13(d)(1)(i). TPS beneficiaries must file during
the re-registration period in the applicable Federal Register
notice; see 81 FR 82398, 82455 (Nov. 18, 2016).
---------------------------------------------------------------------------
<bullet> The renewal EAD application is based on the same
employment authorization category shown on the front of the expiring
EAD or, for an individual approved for TPS, whose EAD was issued
pursuant to either 8 CFR 274a.12(a)(12) or (c)(19); \45\ and
---------------------------------------------------------------------------
\45\ 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 renewal EAD 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.\46\
---------------------------------------------------------------------------
\46\ 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: \47\
---------------------------------------------------------------------------
\47\ See DHS, USCIS, Automatic Employment Authorization (EAD)
Extension (last reviewed/updated Oct. 9, 2024), <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 Oct. 23, 2024).
---------------------------------------------------------------------------
<bullet> Noncitizens admitted as refugees (A03); \48\
---------------------------------------------------------------------------
\48\ See 8 CFR 274a.12(a)(3).
---------------------------------------------------------------------------
<bullet> Noncitizens granted asylum (A05); \49\
---------------------------------------------------------------------------
\49\ 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); \50\
---------------------------------------------------------------------------
\50\ 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); \51\
---------------------------------------------------------------------------
\51\ See 8 CFR 274a.12(a)(8).
---------------------------------------------------------------------------
<bullet> Noncitizens granted withholding of deportation or removal
(A10); \52\
---------------------------------------------------------------------------
\52\ See 8 CFR 274a.12(a)(10).
---------------------------------------------------------------------------
<bullet> Noncitizens granted TPS, if the employment authorization
category on their current EAD is either A12 or C19 (A12); \53\
---------------------------------------------------------------------------
\53\ 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); \54\
---------------------------------------------------------------------------
\54\ See INA sec. 214(e)(2), 8 U.S.C. 1184(e)(2).
---------------------------------------------------------------------------
<bullet> Noncitizen spouses of L-1 nonimmigrants (Intracompany
Transferees) (A18); \55\
---------------------------------------------------------------------------
\55\ See INA sec. 214(c)(2)(E), 8 U.S.C. 1184(c)(2)(E).
---------------------------------------------------------------------------
<bullet> Noncitizens who have filed applications for asylum and
withholding of deportation or removal (C08); \56\
---------------------------------------------------------------------------
\56\ See 8 CFR 274a.12(c)(8).
---------------------------------------------------------------------------
<bullet> Noncitizens who have filed applications for adjustment of
status to lawful permanent resident under
[[Page 101214]]
section 245 of the INA, 8 U.S.C. 1255 (C09); \57\
---------------------------------------------------------------------------
\57\ 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); \58\
---------------------------------------------------------------------------
\58\ See 8 CFR 274a.12(c)(10).
---------------------------------------------------------------------------
<bullet> Noncitizens who have filed applications for creation of
record of lawful admission for permanent residence (C16); \59\
---------------------------------------------------------------------------
\59\ See 8 CFR 274a.12(c)(16).
---------------------------------------------------------------------------
<bullet> Noncitizens who have 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); \60\
---------------------------------------------------------------------------
\60\ See 8 CFR 274a.12(c)(19).
---------------------------------------------------------------------------
<bullet> Noncitizens who have filed legalization applications
pursuant to section 210 of the INA, 8 U.S.C. 1160 (C20); \61\
---------------------------------------------------------------------------
\61\ See 8 CFR 274a.12(c)(20).
---------------------------------------------------------------------------
<bullet> Noncitizens who have filed legalization applications
pursuant to section 245A of the INA, 8 U.S.C. 1255a (C22); \62\
---------------------------------------------------------------------------
\62\ 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); \63\
---------------------------------------------------------------------------
\63\ 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); \64\
and
---------------------------------------------------------------------------
\64\ 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,\65\ under the employment authorization category
``(c)(31)'' in the form instructions to the EAD application (C31).\66\
---------------------------------------------------------------------------
\65\ 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.
\66\ 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 on the face of the EAD, or upon issuance
of notification of a decision denying the renewal request.\67\ 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 when the automatic extension requirements
are met.\68\ Therefore, when the ``card expires'' date on the front of
the EAD is reached, an eligible noncitizen who is continuing their U.S.
employment may present to their employer the Form I-797C receipt notice
for the renewal EAD application to show that the validity of their EAD
has been automatically extended as evidence of continued employment
authorization, and the employer must update the previously completed
Form I-9, Employment Eligibility Verification, 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, reverification of employment authorization or
the EAD must occur when the automatic extension period terminates.\69\
---------------------------------------------------------------------------
\67\ See 8 CFR 274a.13(d)(3).
\68\ See 8 CFR 274a.13(d)(4).
\69\ See DHS,USCIS, ``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 DHS, USCIS, M-274 Handbook for Employers, 5.2
Temporary Increase of Automatic Extension of EADs from 180 Days to
540 Days (last reviewed/updated Apr. 8, 2024), <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/52-temporary-increase-of-automatic-extension-of-eads-from-180-days-to-540-days">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/52-temporary-increase-of-automatic-extension-of-eads-from-180-days-to-540-days</a> (last visited
Oct. 23, 2024).
---------------------------------------------------------------------------
USCIS generally recommends the filing of a renewal EAD application
up to 180 days before the current EAD expires.\70\ If the renewal
application is granted, the employment authorization and/or the new 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.\71\ 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.\72\ As a result, both the
employee and the employer may experience the negative consequences of
gaps in employment authorization and/or EAD validity.
---------------------------------------------------------------------------
\70\ See DHS, USCIS, ``I-765, Application for Employment
Authorization,'' <a href="https://www.uscis.gov/i-765">https://www.uscis.gov/i-765</a> (last visited Oct.23,
2024); DHS, USCIS, Employment Authorization Document (last reviewed/
updated June 7, 2024), <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 Oct. 23, 2024); see also 81 FR 82398, 82456.
\71\ See 8 CFR 274a.13(d)(3).
\72\ See 8 CFR 274a.2(b)(vii) (reverification provision).
---------------------------------------------------------------------------
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.
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 and/or
documentation 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.\73\
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
[[Page 101215]]
categories described in the 2022 TFR, if the renewal applicant timely
filed an renewal EAD application.\74\ 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.\75\ 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.\76\
---------------------------------------------------------------------------
\73\ 87 FR 26614 (May 4, 2022).
\74\ See 8 CFR 274a.13(d); see also 87 FR 26614, 26651 (May 4,
2022).
\75\ See 8 CFR 274a.13(d); see also 87 FR 26614, 26651 (May 4,
2022).
\76\ See 87 FR 26614, 26631 (May 4, 2022).
---------------------------------------------------------------------------
2. Impact of the 2022 Temporary Final Rule
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 and EAD validity 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 and/or employment authorization
documentation based on applications filed on or after May 4, 2022, and
on or before October 26, 2023.\77\
---------------------------------------------------------------------------
\77\ Source: USCIS analysis of renewal EAD automatic extension
expirations data, provided by DHS, USCIS, Office of Performance and
Quality (OPQ), Claims 3 database; data provided November 2023.
---------------------------------------------------------------------------
D. 2024 Temporary Final Rule
1. Overview
Although the 2022 TFR prevented a substantial number of individuals
from experiencing a lapse in their employment authorization and/or
documentation, new circumstances fundamentally unrelated to the reasons
that lead up to the 2022 TFR caused the processing times for renewal
EAD applications to remain at such a level that the 180-day automatic
extension period remained insufficient to prevent a large number of
lapses projected to start in May 2024. The continued lengthy processing
times was primarily due to a substantial increase in the number of
initial EAD applications based on pending asylum applications (C08)
that began in March 2023 and litigation regarding rules that require
USCIS to process initial EAD applications for asylum applicants within
30 days of filing. Other causes included the allocation of USCIS
personnel to assist with historically high levels of encounters at the
southwest land border between the ports of entry, and additional TPS
designations in FY 2022 and FY 2023.
Accordingly, DHS again took steps to help prevent certain renewal
EAD applicants from experiencing a lapse in their employment
authorization and/or documentation while their renewal applications
remain pending while continuing to implement other solutions to return
processing times to target levels. On April 8, 2024, DHS published a
temporary final rule (``2024 TFR'') that, for certain renewal EAD
applications filed beginning April 8, 2024, and ending on September 30,
2025, temporarily increased the automatic extension period from up to
180 days to up to 540 days. The 2024 TFR also increased the automatic
extension period from up to 180 days to up to 540 days for applicants
who properly filed their EAD renewals on or after October 27, 2023, and
whose applications remained pending on or after April 8, 2024.\78\
---------------------------------------------------------------------------
\78\ See 89 FR 24628, 24630 (Apr. 8, 2024).
---------------------------------------------------------------------------
Without the 2024 TFR, USCIS projected that approximately 800,000
renewal applicants would have been in danger of losing their employment
authorization and/or documentation in the period beginning May 2024 and
ending March 2026.\79\ If faced with a disruption of their employment
authorization and/or documentation, these renewal applicants might have
lost their jobs through no fault of their own, and employers may have
been faced with finding replacement workers, an undue burden that is
exacerbated during a time when the U.S. economy has been experiencing
more job openings than available workers.\80\
---------------------------------------------------------------------------
\79\ USCIS projections based on data available on July 1, 2024,
show that this number is now approximately 388,000. See section
V.A.2., Background and Population, Table 12, Population Projections
by Month, Rounded to Thousands.
\80\ See 89 FR 24628, 24630 (April 8, 2024). At the time, the
Bureau of Labor Statistics data showed 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).
---------------------------------------------------------------------------
2. Impact of the 2024 Temporary Final Rule
As with the 2022 TFR, the 2024 TFR succeeded at minimizing
disruption to renewal EAD applicants and their U.S. employers that
would have otherwise resulted from USCIS processing delays. The 2024
TFR was projected to prevent approximately 540,000 applicants from
experiencing a temporary lapse in employment authorization and/or
employment authorization documentation during the 2-year period
beginning May 2024.\81\ As of July 1, 2024, approximately 3,500 renewal
applicants avoided at least 1 day of lapse in employment authorization
and/or documentation due to the 2024 TFR.\82\ The 2024 TFR also
provided DHS and USCIS with additional time to consider long-term
solutions by soliciting public comments, evaluating the effects of
policy and operational changes, and continuing to identify new
strategies and efficiencies in light of ongoing developments.\83\
---------------------------------------------------------------------------
\81\ See 89 FR 24628, 24659, Table 6A.
\82\ Source: USCIS analysis of renewal EAD automatic extension
expirations data, provided by DHS, USCIS, OPQ, Claims 3 database;
data provided July 24, 2024. See section VI.A.2, Background and
Population, for more information.
\83\ See 89 FR 24628, 24629 (Apr. 8, 2024).
---------------------------------------------------------------------------
III. Purpose and Discussion of the Final Rule
From time to time, one or more circumstances affecting USCIS
operations have resulted in a significant increase in USCIS processing
times for certain automatic extension-eligible categories of renewal
EAD applications. Since the promulgation of the 180-day automatic
extension rule in 2016, DHS deemed it necessary to issue TFRs in 2022
and 2024 to temporarily increase the automatic extension period to 540
days because a variety of circumstances resulted in processing times
longer than the 180-day automatic extension period.\84\ These TFRs were
necessary to prevent a substantial number of renewal EAD applicants
from experiencing a lapse in their employment authorization and/or
documentation and to avert the significant harmful effect such lapses
have for applicants, their families, their employers, and the public at
large.
---------------------------------------------------------------------------
\84\ See 87 FR 26614 (May 4, 2022), 89 FR 24628 (Apr. 8, 2024).
---------------------------------------------------------------------------
Without this rule making permanent the increase of the automatic
extension period from up to 180 days to up to 540 days provided by the
2024 TFR, the longer automatic extension period would cease to apply to
renewal applications filed after September 30,
[[Page 101216]]
2025.\85\ Given the history of filing surges and other unpredictable
circumstances that have adversely impacted renewal EAD application
processing times since the original automatic extension provision was
promulgated in 2016,\86\ DHS has now determined that a permanent
increase in the automatic extension period from up to 180 days to up to
540 days is necessary for the long-term protection of applicants from a
lapse in their employment authorization and/or documentation. DHS
believes that if the automatic extension period is not permanently
increased from up to 180 days to up to 540 days, many renewal EAD
applicants may be in danger of experiencing a gap in employment
authorization and/or EAD validity again in the future. Such 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.
---------------------------------------------------------------------------
\85\ This final rule incorporates the content of the automatic
extension provisions at 8 CFR 274a.13(d)(5) (promulgated under the
2022 TFR) and (d)(6) (promulgated under the 2024 TFR) into 8 CFR
274a.13(d)(1) and removes them from the CFR. 8 CFR 274a.13(d)(5) was
effective until October 26, 2023, and, but for this final rule,
would have remained in the CFR until October 15, 2025. But for this
final rule, 8 CFR 274a.13(d)(6) would have been effective until
September 30, 2025, and would have remained in the CFR until
September 20, 2027. Thus, in this final rule, DHS is accounting for
the content of both 8 CFR 274a.13(d)(5) and (d)(6) periods and the
adoption of a permanent 540-day automatic extension period effective
going forward. To simplify the regulatory text but maintain the
content of all provisions for Form I-9, Employment Eligibility
Verification, purposes, DHS is consolidating all of the automatic
extension periods into one provision at 8 CFR 274a.13(d)(1).
Applicants eligible for the up to 540-day automatic extension period
under 8 CFR 274a.13(d)(5) and (d)(6) continue to be eligible under
this final rule. This final rule, however, does not grant additional
540-day extension periods to those who were previously able to take
advantage of a 540-day automatic extension period, even if the case
remains pending at or before the 540-day mark under previous DHS
rules.
\86\ 81 FR 82398, 82455 (Nov. 18, 2016).
---------------------------------------------------------------------------
To avert possible gaps in employment authorization and/or EAD
validity for certain renewal EAD applicants and the harmful effects
caused by such lapses, DHS is permanently amending existing DHS
regulations to increase the automatic extension period to up to 540
days from the expiration date stated on their EADs. DHS is taking this
step after having published two TFRs addressing the matter and seeking
public comments on long-term solutions.\87\ DHS is applying this rule
to all renewal EAD application categories eligible for automatic
extension pursuant to 8 CFR 274a.13(d).
---------------------------------------------------------------------------
\87\ In both TFRs, DHS sought public comments. As provided in
Section IV, Discussion of Public Comments, as part of the 2024 TFR,
DHS not only sought comments on the entire rule, but also asked
commenters specifically to address options for long-term solutions,
including whether the solution provided in the TFR should be made
permanent or be subject to modification. See 2024 TFR, at 24628. In
this final rule, DHS is responding to these comments and finalizing
the approach by permanently codifying in DHS regulations the
solutions of the prior TFRs. Therefore, this final rule complies
with the procedural requirements for rulemaking under the
Administrative Procedure Act (APA), 5 U.S.C. 553, having provided
adequate notice and an opportunity to comment before promulgating
this final rule. See Little Sisters of the Poor Saints Peter & Paul
Home v. Pennsylvania, 591 U.S. 657, 684-687 (2020) (holding that an
interim final rule's ``request for comments readily satisfied the
APA notice requirements'').
---------------------------------------------------------------------------
The following sections in this preamble describe the history of a
variety of unpredictable circumstances, such as sudden spikes in EAD
application filings, and their impacts, which resulted in the need for
the 2022 and 2024 TFRs. These examples illustrate that, without this
rule permanently extending the automatic extension period from up to
180 days to up to 540 days, DHS, renewal EAD applicants, their
families, and their employers would face increased uncertainty about
the possibility of lapsed employment authorization and/or documentation
in the future. DHS notes that it is not an efficient use of its
resources to issue TFRs whenever circumstances arise resulting in
significant increases in renewal EAD application processing times. DHS
believes that this action will save government resources and provide
predictability and stability to applicants, families, employers, and
communities.
DHS is therefore permanently extending the automatic extension
period from up to 180 days to up to 540 days in order to guard against
the effects of unpredictable future events such as those that led to
the two TFRs.
A. Circumstances Resulting in the 2022 Temporary Final Rule
1. USCIS Enjoined From Increasing Its Filing Fees
USCIS is a fee-based agency that relies on predictable fee revenue
and its carryover from the previous year. USCIS began experiencing
fiscal troubles in early December 2019, when at least one USCIS
directorate initiated a hiring freeze.\88\ These fiscal troubles were
due in part to the fact that USCIS had not been able to update its fee
structure since the 2016 Fee Rule \89\ (including fees for Form I-765),
meaning that USCIS was unable to fully cover the costs of administering
current and projected volumes of immigration benefit requests.
---------------------------------------------------------------------------
\88\ USCIS' Field Operations Directorate (FOD) initiated a
hiring freeze in December 2019; USCIS' Service Center Operations
Directorate (SCOPS) did the same starting in February 2020.
\89\ See 81 FR 73292, 73302 (Oct. 24, 2016).
---------------------------------------------------------------------------
DHS promulgated a new Fee Rule in August 2020 to address this
disparity between its filing fees and the costs of adjudicating
immigration benefit requests.\90\ In September 2020, however, the 2020
Fee Rule was enjoined before it took effect.\91\ As such, the fee for
Form I-765 remained at $410, which was the fee set by the earlier 2016
Fee Rule.\92\ The 2016 Fee Rule also exempted applicants from paying a
fee if filing a Form I-765 to request a renewal or replacement EAD
under 8 CFR 274a.12(c)(9) (pending adjustment of status application),
as well as some additional categories.\93\
---------------------------------------------------------------------------
\90\ See U.S. Citizenship and Immigration Services Fee Schedule
and Changes to Certain Other Immigration Benefit Request
Requirements, 85 FR 46788 (Aug. 3, 2020) (``2020 Fee Rule''). The
2020 Fee Rule, among other things, adjusted certain immigration and
naturalization benefit request fees charged by USCIS, removed
certain fee exemptions, and changed the fee waiver requirement.
\91\ On September 29, 2020, the U.S. District Court for the
Northern District of California in Immigration Legal Resource
Center, et al. v. Wolf, et al., 20-cv-05883-JWS, preliminarily
enjoined DHS from implementing or enforcing any part of the 2020 Fee
Rule.
\92\ See 81 FR 73292 (Oct. 24, 2016).
\93\ See 85 FR 46788 (Aug. 3, 2020). Additional categories
exempt from the filing fee include 8 CFR 274a.12(a)(8) and (10) and
(c)(1), (4), (7), and (16).
---------------------------------------------------------------------------
USCIS continued to have to rely on the fee schedule established in
the 2016 Fee Rule, which did not fully account for costs associated
with adjudicating benefit requests. This unsustainable fiscal situation
resulted in the inability to fund sufficient new officer positions to
handle the agency's adjudication workload.\94\ This meant, in part,
that USCIS was already in a precarious financial position with regard
to staffing when the COVID-19 pandemic began. The litigation enjoining
the implementation of the 2020 Fee Rule is an example of an external
event that negatively impacted renewal EAD application processing
times.\95\
---------------------------------------------------------------------------
\94\ From FY 2015 through FY 2020, USCIS received a range of
approximately 2.0 to 2.3 million Form I-765 filings (seeking both
initial EADs and renewal of initial EADs) each fiscal year. In FY
2021, this figure increased to approximately 2.6 million. This
increase in Form I-765 filings, which was largely observed in the
volume of renewal EAD applications sought in categories eligible for
automatic extension of EADs, contributed to increased renewal EAD
application processing times.
\95\ On January 31, 2024, DHS promulgated a new Fee Rule, which
became effective April 1, 2024. See 89 FR 6194 (Jan. 31, 2024).
---------------------------------------------------------------------------
[[Page 101217]]
2. Public Health Emergency Caused by the COVID-19 Pandemic
On January 31, 2020, the Secretary of Health and Human Services
(HHS) declared a public health emergency under section 319 of the
Public Health Service Act (42 U.S.C. 247d), in response to COVID-
19.\96\ On February 24, 2021, the President issued a continuation of
the national emergency concerning the COVID-19 pandemic.\97\ Effective
October 15, 2021, HHS renewed the public health emergency
determination.\98\ On January 14, 2022, as a result of the continued
impact of the COVID-19 pandemic, HHS again renewed the determination
that a public health emergency exists.\99\
---------------------------------------------------------------------------
\96\ See HHS, Determination that a Public Health Emergency
Exists (Jan. 31, 2020), <a href="https://aspr.hhs.gov/legal/PHE/Pages/2019-nCoV.aspx">https://aspr.hhs.gov/legal/PHE/Pages/2019-nCoV.aspx</a> (last visited Aug. 19, 2024).
\97\ Notice on the Continuation of the National Emergency
Concerning the Coronavirus Disease 2019 (COVID-19) Pandemic, 86 FR
11599 (Feb. 26, 2021); Proclamation 9994 of March 13, 2020,
Declaring a National Emergency Concerning the Coronavirus Disease
(COVID-19) Outbreak, 85 FR 15337 (Mar. 18, 2020).
\98\ HHS, Renewal of Determination that a Public Health
Emergency Exists (Oct. 15, 2021), <a href="https://aspr.hhs.gov/legal/PHE/Pages/COVID-15Oct21.aspx">https://aspr.hhs.gov/legal/PHE/Pages/COVID-15Oct21.aspx</a> (last visited Aug. 23, 2024).
\99\ See HHS, Office of the Assistant Secretary for Preparedness
and Response, Renewal of Determination that a Public Health
Emergency Exists (Jan. 14, 2022), <a href="https://aspr.hhs.gov/legal/PHE/Pages/COVID19-14Jan2022.aspx">https://aspr.hhs.gov/legal/PHE/Pages/COVID19-14Jan2022.aspx</a> (last visited Aug. 19, 2024).
---------------------------------------------------------------------------
As noted above, USCIS was already in a precarious financial
situation in 2019. This was exacerbated by a significant drop in
receipts across many of the most common benefit types at the beginning
of the COVID-19 pandemic in spring 2020.\100\ The significant drop in
revenue early in the pandemic led USCIS to plan for a sweeping furlough
of approximately 70 percent of its workforce to avoid financial
collapse, including furloughing immigration services officers who
adjudicate Form I-765.\101\ In an attempt to avoid these furlough
measures, USCIS took steps to preserve sufficient funds to meet payroll
and carryover obligations. These measures included substantial cuts for
supplies, facilities, overtime, and contractor support services, as
well as an agency-wide hiring freeze lasting from May 1, 2020, through
March 31, 2021. The loss of overtime funds hindered USCIS' ability to
address and mitigate backlogs with existing staff, which has been a
strategy used successfully in the past to ensure processing times
remain within goals.\102\ This option was not available in 2020, due to
USCIS' worsening fiscal situation beginning in late 2019 and continuing
into 2020 and part of 2021.
---------------------------------------------------------------------------
\100\ See 2020 USCIS Statistical Annual Report, p. 4: ``[During
the onset of the COVID-19 pandemic], incoming receipts were 32
percent lower compared to the same time period in FY 2019. By the
end of FY 2020, USCIS received about 5% fewer receipts than in FY
2019. Although receipts decreased in some of the most frequently
submitted form types, others such as the N-400 (Application for
Naturalization) and I-129 (Petition for Nonimmigrant Worker)
increased slightly from FY 2019.'' In addition to the lowest number
of receipts in the past 5 years, USCIS also completed the lowest
number of benefit requests in the past 5 years. The worst rates of
completion were observed during the beginning of the pandemic when
USCIS field offices and ASCs were closed to the public. While USCIS
attempted to recover by shifting adjudications to form types not
requiring in-person appearances, USCIS still completed fewer benefit
requests than it received in FY 2020. See 2020 USCIS Statistical
Annual Report, p. 4.
\101\ During this time period, USCIS had an estimated $1.2
billion budget shortfall.
\102\ For example, in FY 2019, USCIS used $5.52 million of
overtime funds for assigned staff to conduct credible and reasonable
fear interviews, as well as Migrant Protection Protocols (MPP) non-
refoulement interviews.
---------------------------------------------------------------------------
These fiscal issues had a direct impact on staffing, and
insufficient staffing levels directly impacted the processing times for
Form I-765. In addition to a direct shortage of staff due to hiring
freezes, USCIS experienced an increase in attrition following
announcement of a potential furlough that could have impacted nearly 70
percent of employees.\103\ The hiring freeze also meant that the
higher-than-normal number of vacancies could not be filled.
Additionally, several initiatives took staff away from their normal
duties such as efforts relating to unaccompanied children and
processing petitions and applications by or on behalf of Afghan
evacuees. The loss of contractor support services also hindered USCIS'
ability to intake filings efficiently and prepare cases for
adjudication by officers.
---------------------------------------------------------------------------
\103\ See DHS, USCIS, News Release, Deputy Director for Policy
Statement of USCIS' Fiscal Outlook (June 25, 2020), <a href="https://www.uscis.gov/news/news-releases/deputy-director-for-policy-statement-on-uscis-fiscal-outlook">https://www.uscis.gov/news/news-releases/deputy-director-for-policy-statement-on-uscis-fiscal-outlook</a>.
---------------------------------------------------------------------------
All these factors contributed to a decrease in Form I-765
completions. For example, in FY 2019, the Service Center Operations
Directorate (SCOPS) allocated 343,399 officer hours to its Form I-765
workload \104\ and completed 1,443,235 adjudications. By comparison, in
FY 2020, SCOPS allocated 327,947 (or approximately 4.5 percent fewer)
officer hours to the same workload and subsequently was only able to
complete 1,379,745 (or approximately 4.4 percent fewer) adjudications.
These reductions were partly attributable to the overall decrease in
staff. At the start of FY 2020, SCOPS had 5,102 employees. This
diminished to 4,886 at the start of FY 2021 and 4,731 at the start of
FY 2022 as the effects of attrition and the hiring freeze continued.
This overall decrease of approximately 7.3 percent did not include the
additional loss of I-765 adjudication hours that stemmed from SCOPS
supporting several programs requesting detailees.\105\ The number of
detailees temporarily missing from the SCOPS workforce was not static
but exceeded 200 employees at points during FY 2021, leaving SCOPS
staffed at levels less than 89 percent of what existed going into FY
2020. This data does not include contractor hours, which also were
severely impacted by USCIS' fiscal situation as USCIS was forced to
reduce the number of contractors available to assist with case
processing.
---------------------------------------------------------------------------
\104\ Form I-765 workload includes requests for initial,
renewal, and replacement employment authorization and/or EADs.
\105\ A detailee is an employee who is temporarily detailed,
i.e., temporarily assigned, to a different position for a specified
period, with the employee returning to his or her regular duties at
the end of the detail.
---------------------------------------------------------------------------
USCIS was also unable to surge additional resources to increase
officer hours adjudicating Form I-765 applications because of USCIS'
limited resources and the need to manage other competing priorities in
FY 2021. For example, USCIS surged officers to adjudicate employment-
based Form I-485 applications to minimize the number of employment-
based immigrant visas that would go unused at the end of FY 2021, after
an extraordinary number of such unused family-preference visa numbers
from FY 2020 ``fell across'' to the employment-based visa allocation
for FY 2021,\106\ due primarily to Department of State consular
closures caused by the COVID-19 pandemic.
---------------------------------------------------------------------------
\106\ See generally INA secs. 201(d)(2)(C), 8 U.S.C.
1151(d)(2)(C),
[[Page 101218]]
Table 1--Impact of Steadily Decreasing Staffing Levels on SCOPS' Form I-
765 Completions (Initial and Renewal Applications)
------------------------------------------------------------------------
Fiscal year Officer hours allocated Form I-765 completions
------------------------------------------------------------------------
2019.................. 343,399................ 1,443,235.
2020.................. 327,947 (approximately 1,379,745
4.5 percent fewer than (approximately 4.4
2019). percent fewer than
2019).
2021.................. 314,924 (approximately 1,249,548
8.3 percent fewer than (approximately 13.4
2019 and 4.0 percent percent fewer than
fewer than 2020). 2019 and 9.4 percent
fewer than 2020).
------------------------------------------------------------------------
Note: This data does not include contractor hours, which also were
severely impacted by USCIS' fiscal situation as USCIS was forced to
reduce the number of contractors available to assist with case
processing. At the time of the 2022 TFR, SCOPS' contractor staff had
been reduced by approximately 8.2% since October 1, 2020.
The Field Office Directorate's National Benefit Center (NBC), which
also adjudicates a number of Form I-765 applications \107\ observed a
similar reduction in staff and completions.
---------------------------------------------------------------------------
\107\ Such as initial and renewal Forms I-765 filed under 8 CFR
274a.12(c)(9) and (10), which experienced a dramatic growth in
processing times in 2021, as detailed in this rule.
Table 2--Impact of Steadily Decreasing Staffing Levels on NBC's Form I-
765 Completions (Initial and Renewal Applications)
------------------------------------------------------------------------
Fiscal year Officer hours allocated Form I-765 completions
------------------------------------------------------------------------
2019.................. 115,510................ 612,464.
2020.................. 112,266 (approximately 605,105 (approximately
2.8 percent fewer than 1.2 percent fewer than
2019). 2019).
2021.................. 102,099 (approximately 509,973 (approximately
11.6 percent fewer 16.7 percent fewer
than 2019 and 9.1 than 2019 and 15.7
percent fewer than percent fewer than
2020). 2020).
------------------------------------------------------------------------
Note: This data does not include contractor hours, which also were
severely impacted by USCIS' fiscal situation as USCIS was forced to
reduce the number of contractors available to assist with case
processing.
Although the United States is no longer in a pandemic-related
health emergency, this is an example of an unanticipated circumstance
that adversely impacted USCIS renewal EAD processing times and was a
significant factor in the decision to issue the 2022 TFR.
3. Unprecedented Increase in EAD Application Filings
An additional contributing factor to the severe backlog and
increased processing times for Forms I-765 was a substantial and
unprecedented 2-month increase of renewal EAD applications in March and
April 2021, and a sustained increase in filings thereafter. In calendar
year (CY) 2019, the average number of monthly renewal applications
filed for the C08, C09, and C10 categories combined was 46,715. In CY
2020, the average number of monthly renewal applications filed for
these three categories was 43,232. In March 2021, the renewal receipt
numbers for these three categories spiked 56 percent over the previous
month and 76.4 percent over the monthly average total for 2020. In
April 2021, the renewal receipt numbers for these three categories
remained elevated such that they were 25.6 percent higher than February
2021, and 53.6 percent over the monthly average total for 2020. The
increase in renewal EAD applications was unexpected based on historical
filing patterns.\108\
---------------------------------------------------------------------------
\108\ This increase in Form I-765 filings may have been driven
primarily by litigation and the ``frontlog'' of applications at the
three USCIS lockbox facilities, which receive and process
applications and payments in Chicago, Illinois; Phoenix, Arizona;
and Lewisville, Texas. On July 20, 2020, Casa de Maryland, Inc.
filed suit against then-Acting DHS Secretary Chad Wolf and DHS to
enjoin changes to EAD rules for asylum seekers. On September 11,
2021, the U.S. District Court of Maryland issued a preliminary
injunction of the new EAD rules. See Casa de Maryland v. Wolf, 486
F.Supp.3d 928 (D. Md. Sept. 11, 2020). Consequently, approximately
23,000 applications pending at the USCIS lockbox were rejected in
late October 2020 for a failure to pay the required biometrics fee
or a failure to provide proof that the applicant was a member of the
litigation class. These applications were refiled and, coupled with
the prioritization of initial Form I-765 applications under category
C08 due to the litigation, led to a redirection of resources away
from renewal EAD applications. In addition, as noted above, the
lockbox was experiencing a ``frontlog'' of applications, which led
to a processing delay.
Table 3--Surge in Renewal Form I-765 Filings
----------------------------------------------------------------------------------------------------------------
Month C08 category C09 category C10 category Total
----------------------------------------------------------------------------------------------------------------
February 2021................................... 30,857 14,661 8,367 53,885
March 2021...................................... 52,007 19,589 10,840 82,436
April 2021...................................... 42,101 15,189 9,134 66,424
----------------------------------------------------------------------------------------------------------------
In the eight months following April 2021, the receipt numbers for
these categories fell to an average of 52,400 receipts per month but
was still 21 percent above the average monthly total for CY 2020. The
increase in the number and processing time of asylum and adjustment of
status applications, which are the two most populous EAD filing
categories eligible for the automatic extension under 8 CFR
274a.13(d)(1), may have led to this sustained increase in applications
for initial and renewal employment authorization (in the C08 and C09
categories, respectively), which further compounded the Form I-765
adjudication backlog.
Specifically, in the years leading up to FY 2022, asylum
application receipts outpaced available resources, leading to an
increase in pending asylum cases, both in affirmative and defensive
filings,
[[Page 101219]]
as shown in Table 4.\109\ The increase in pending asylum cases
contributed to the increase in C08 renewal filings in FY 2021, which
further impacted the renewal EAD application backlog.
---------------------------------------------------------------------------
\109\ See Background, p. 2, in Backlog Reduction of Pending
Affirmative Asylum Cases: Fiscal Year 2021 Report to Congress (Oct.
20, 2021), <a href="https://www.dhs.gov/sites/default/files/2021-12/USCIS%20-%20Backlog%20Reduction%20of%20Pending%20Affirmative%20Asylum%20Cases.pdf">https://www.dhs.gov/sites/default/files/2021-12/USCIS%20-%20Backlog%20Reduction%20of%20Pending%20Affirmative%20Asylum%20Cases.pdf</a> (last visited Aug.19, 2024) (``The affirmative asylum backlog is
the result of a prolonged, significant increase in affirmative
asylum application filings and credible fear screenings, which are
processed by the U.S. Citizenship and Immigration Services (USCIS)
asylum offices. Between FY 2013 and FY 2017, despite significant
staffing increases, receipt growth in asylum office workloads
outpaced the expansion of asylum office staffing and the
establishment of new or expanded facilities needed to support
additional staffing growth.'').
\110\ See Executive Office of Immigration Review Adjudication
Statistics, Total Asylum Applications (Jan 19, 2022), <a href="https://www.justice.gov/eoir/page/file/1106366/download">https://www.justice.gov/eoir/page/file/1106366/download</a> (last visited
Aug.19, 2024).
\111\ Data reflects affirmatively filed Form I-589 asylum
applications and do not include defensive asylum claims before a DOJ
EOIR immigration court. See USCIS, Number of Service Wide Forms,
October 1, 2021-December 31, 2021(last updated Feb. 2022), <a href="https://www.uscis.gov/sites/default/files/document/reports/Quarterly_All_Forms_FY2022_Q1.pdf">https://www.uscis.gov/sites/default/files/document/reports/Quarterly_All_Forms_FY2022_Q1.pdf</a> (last visited Aug. 19, 2024).
Table 4--Total Asylum Cases Pending
----------------------------------------------------------------------------------------------------------------
DOJ \110\ USCIS \111\ Total
----------------------------------------------------------------------------------------------------------------
Total Asylum Cases Pending in:
FY 2017 (Sep 2017).......................................... 377,140 289,835 666,975
FY 2018 (Sep 2018).......................................... 473,510 319,202 792,712
FY 2019 (Sep 2019).......................................... 608,976 339,836 948,812
FY 2020 (Sep 2020).......................................... 647,923 386,014 1,033,937
FY 2022 (Dec 2021).......................................... 628,551 432,341 1,060,892
----------------------------------------------------------------------------------------------------------------
In addition, the number of employment-based adjustment of status
applications increased significantly in FY 2021 due to the number of
employment-based visas that became available as a result of unusually
low visa usage in other categories in FY 2020 due to the COVID-19
pandemic. 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, which likely contributed to
the increase in C09 initial filings in FY 2021, further taxing USCIS'
resources to timely process renewal applications. USCIS also saw
significant increases in filings across other benefit request types
during CY 2021.\112\
---------------------------------------------------------------------------
\112\ For example, USCIS also encountered large increases of
filings of Form I-131, Application for Travel Document, possibly
related to the increase in filings of Form I-485, Application to
Register Permanent Residence. From CY 2020 to CY 2021, USCIS
observed an overall 25.8 percent increase in receipts across form
types. Although this represents a substantial increase, there was a
29 percent increase in renewal EAD applications in the automatic
extension categories.
---------------------------------------------------------------------------
In CY 2021, USCIS received approximately 1,290,000 initial Forms I-
765, which was 23 percent higher than the volume received in CY 2020
(approximately 1,050,000) and 18 percent higher than the volume
received in CY2019 (approximately 1,090,000). Similarly, in CY 2021,
USCIS received approximately 1,260,000 renewal EAD applications, which
was 21 percent higher than the volume received in CY 2020
(approximately 1,040,000) and 13 percent higher than the volume
received in CY 2019 (approximately 1,120,000).
Table 5A--Initial Form I-765 Filings
------------------------------------------------------------------------
Form I-
Calendar year 765 Surge or difference
filings
------------------------------------------------------------------------
2019....................... 1,090,000
2020....................... 1,050,000 4 percent lower than 2019.
2021....................... 1,290,000 18 percent higher than 2019.
23 percent higher than 2020.
------------------------------------------------------------------------
Table 5B--Renewal Form I-765 Filings
------------------------------------------------------------------------
Form I-
Calendar year 765 Surge or difference
filings
------------------------------------------------------------------------
2019....................... 1,120,000
2020....................... 1,040,000 7 percent lower than 2019.
2021....................... 1,260,000 13 percent higher than 2019.
21 percent higher than 2020.
------------------------------------------------------------------------
4. Combined Impact on Renewal EAD Application Processing Times
In summary, because of the financial strains caused by the
combination of the litigation resulting in the enjoining of the 2020
Fee Rule and the impact of the COVID-19 pandemic, USCIS was unable to
handle the concurrent spike and monthly increase in renewal EAD
filings. The average monthly receipts in 2021 for the automatic
extension categories were 60,300, which was 13,500 per month (or 29
percent) higher than 2020 monthly averages. In addition to this higher
overall receipt volume in 2021, there was a surge in receipts in March
2021 (88,500) and April 2021 (71,200) that led to a rapid increase in
pending applications. On top of the higher receipt volumes, due to
staffing issues, the average number of monthly completions in 2021 was
33,900 per month, which was 10,600 per month (or 24 percent) lower than
2020 monthly averages. The combination of higher receipts and lower
completions led to increased processing times, which downstream
resulted in higher numbers of renewal applications pending past the
180-day automatic extension period.
B. Circumstances Resulting in the 2024 Temporary Final Rule
1. Overview
On April 8, 2024, DHS published the 2024 TFR that, for certain
renewal EAD applications filed during a limited period that ends on
September 30, 2025, again temporarily increased the automatic extension
period from up to 180 days to up to 540 days.\113\ The multiple
circumstances that resulted in the 2024 TFR are summarized in the
following sections. These examples illustrate the unpredictable events
that arise from time to time and render the 180-day automatic extension
period insufficient to protect renewal applicants and their employers
from the harms resulting from a lapse in employment authorization and/
or documentation.
---------------------------------------------------------------------------
\113\ See 89 FR 24628 (Apr. 8, 2024). The 2024 TFR also
increased the automatic extension period from up to 180 days to up
to 540 days for applicants who properly filed their EAD renewals on
or after October 27, 2023.
---------------------------------------------------------------------------
[[Page 101220]]
2. Surge in Initial EAD Application Filings by Pending Asylum
Applicants
In FY 2023, USCIS experienced a surge in EAD applications primarily
\114\ driven by initial EAD applications by individuals with pending
asylum applications (C08).\115\ The increase in initial C08 EAD
applications placed a substantial strain on USCIS resources due to the
high volume of cases.
---------------------------------------------------------------------------
\114\ Other factors related to EAD processing 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 did not significantly compound
the pressures on EAD renewal processing.
\115\ 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). These initial C08
applicants 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, processing of C08 EAD
applications was also 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,\116\ requires USCIS to adjudicate initial C08 EAD
applications within 30 days of filing.\117\ 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'' (the Timeline Repeal Rule), which amended
8 CFR 208.7(a)(1) to remove the 30-day processing requirement.\118\ DHS
subsequently published another final rule titled ``Asylum Application,
Interview, and Employment Authorization for Applicants'' (the Broader
Asylum EAD Rule), which made further changes to DHS's regulations
governing eligibility for employment authorization based on a pending
asylum application, including extending the time period required for
asylum applicants to 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.\119\
---------------------------------------------------------------------------
\116\ See 59 FR 62284, 62289 (Dec. 5, 1994).
\117\ 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).
\118\ See 85 FR 37502 (June 22, 2020).
\119\ See 85 FR 38532 (June 26, 2020).
---------------------------------------------------------------------------
Litigation followed the publication of these two rules (``2020
Asylum EAD Rules''), including CASA \120\ in the U.S. District Court
for the District of Maryland, and Asylumworks \121\ 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.\122\ On September
22, 2022, DHS published a final rule titled ``Asylum Application, and
Employment Authorization for Applicants; Implementation of Vacatur''
\123\ 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.
---------------------------------------------------------------------------
\120\ See CASA de Maryland, Inc. v. Wolf, 486 F. Supp. 3d 928
(D. Md. 2020).
\121\ Asylumworks v. Mayorkas, 590 F. Supp. 3d 11 (D.D.C. Feb.
7, 2022).
\122\ See 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
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).
\123\ 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 for their EAD. While the
court ordered a return to a regulatory requirement that had existed
until 2020, the burden created by the court's order was significant and
impacted overall EAD processing due to the surge in C08 EAD
applications.
Following the Asylumworks vacatur, at the end of February 2022,
there were 93,639 pending cases to which the 30-day timeframe
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.\124\
---------------------------------------------------------------------------
\124\ 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.
---------------------------------------------------------------------------
3. Significant Increase in Referrals to USCIS for Credible Fear
Assessments
For the period leading up to the 2024 TFR, economic and political
instability around the world has been fueling high levels of global
migration, including in the Western Hemisphere.\125\ For example, in
December 2022, U.S. Border Patrol (USBP) \126\ encountered
approximately 222,000 noncitizens between ports of entry, then second
only to May 2022 (approximately 224,000 encounters). DHS 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 \127\ and a
surge in resources to expeditiously process and remove individuals who
arrive at the southwest border without a lawful basis to remain.\128\
The number of encounters was highly variable. For example, July 2023
saw 132,642 encounters while December 2023 saw 249,735 encounters,
before falling again in January 2024 (176,205).\129\ With this overall
increase in encounters at the southwest border, there was also an
increase in referrals to USCIS for credible fear screenings \130\ of
[[Page 101221]]
individuals 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.\131\ Following implementation of a Presidential Proclamation
and related interim final rule in June 2024, crossings between ports of
entry fell by over 55 percent.\132\
---------------------------------------------------------------------------
\125\ See 88 FR 31314, 31315 (May 16, 2023) (discussing the
reasons for the highest levels of global migration since World War
II).
\126\ 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 DHS, CBP,
Along the U.S. Borders (last modified Sept. 6, 2024), <a href="https://www.cbp.gov/border-security/along-us-borders">https://www.cbp.gov/border-security/along-us-borders</a> (last visited Oct. 23,
2024).
\127\ See 88 FR 31314, 31314 (May 16, 2023).
\128\ 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 Oct.
23, 2024).
\129\ See DHS, CBP, Southwest Land Border Encounters (last
modified Oct. 22, 2024), <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 Oct. 23, 2024).
\130\ 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).
\131\ See DHS, USCIS, 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 Oct. 23,
2024).
\132\ See DHS, Fact Sheet: Joint DHS-DOJ Final Rule Issued to
Restrict Asylum Eligibility for Those Who Enter During High
Encounters at the Southern Border (Sept. 30, 2024), <a href="https://www.dhs.gov/news/2024/09/30/fact-sheet-joint-dhs-doj-final-rule-issued-restrict-asylum-eligibility-those-who">https://www.dhs.gov/news/2024/09/30/fact-sheet-joint-dhs-doj-final-rule-issued-restrict-asylum-eligibility-those-who</a> (last visited Oct. 23,
2024).
---------------------------------------------------------------------------
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
detailed USCIS personnel, including officers who adjudicate EAD
applications, to the USCIS RAIO directorate for up to 120 days to
conduct credible fear screenings.\133\ 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 begin the detail.\134\ Thus, many USCIS detailees were required
to take a full-time asylum officer training course lasting several
weeks in addition to the 120 day detail period. Diverting adjudicatory
resources by training and detailing adjudicators to conduct credible
fear screenings significantly strained operational resources for
renewal EAD adjudications, resulting in increased processing
times.\135\
---------------------------------------------------------------------------
\133\ 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 Oct.
23, 2024) (``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.
\134\ 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.
\135\ 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 White House,
Office of Management and Budget, 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> (last visited Oct. 23, 2024).
---------------------------------------------------------------------------
Positive credible fear determinations also created 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 their asylum application has been pending for 150
days.
4. Impact of Asylum Filing Surges and Backlogs on C08 Renewals
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.\136\ In FY 2023, USCIS received more
than 454,300 affirmative asylum applications.\137\ 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 backlogs in asylum applications at USCIS and
EOIR were projected to result in over 770,000 C08 renewal EAD
application filings during the effective period of the 2024 TFR.\138\
---------------------------------------------------------------------------
\136\ See DHS, USCIS, 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 Oct. 23, 2024).
\137\ See DHS, USCIS, 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 Oct. 23,
2024).
\138\ See TFR Modeling Methodology.
---------------------------------------------------------------------------
5. 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 countries for TPS under section 244 of the INA, 8 U.S.C. 1254a.
There are currently 16 countries with active TPS designations.\139\ TPS
provides temporary protection from removal and employment authorization
to eligible nationals of designated countries present in the United
States.\140\ The Secretary may designate a country for TPS if the
conditions in a country meet certain statutory criteria, including
preventing the country's nationals from returning safely due to ongoing
armed conflict or extraordinary and temporary conditions or rendering
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.\141\ USCIS
is the designated entity within DHS to administer the TPS program.\142\
---------------------------------------------------------------------------
\139\ For a list of designated countries, see DHS, USCIS,
Temporary Protected Status (last reviewed/updated Oct. 17, 2024),
<a href="https://www.uscis.gov/humanitarian/temporary-protected-status">https://www.uscis.gov/humanitarian/temporary-protected-status</a>
(last visited Oct. 23, 2024).
\140\ See INA secs. 244(a)(1); 8 U.S.C. 1254a(1).
\141\ See INA secs. 244(b)(1)(A)-(C); 8 U.S.C. 1254a(b)(1)(A)-
(C).
\142\ See 6 U.S.C. 275. See INA sec. 244(a); 8 U.S.C. 1254a(a).
\143\ See INA sec. 244(a)(4), 8 U.S.C. 1254a(a)(4); 8 CFR 244.5,
274a.12(c)(19).
---------------------------------------------------------------------------
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 or after their TPS application is
approved.\143\ TPS-based EADs fall under the A12 (TPS previously
granted) and C19 (initial TPS application pending) categories.
Individuals granted TPS must re-register for TPS and may apply to renew
their EADs as part of any announced re-registration period if the
country's TPS designation is extended
[[Page 101222]]
by the Secretary pursuant to statutory requirements.\144\
---------------------------------------------------------------------------
\144\ 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,\145\ Cameroon,\146\
Ethiopia,\147\ Sudan,\148\ and Ukraine.\149\ These initial designations
allowed nationals of these countries who were already in the United
States to apply for TPS and EADs. During this same period, the
Secretary extended and redesignated for TPS Burma,\150\ Haiti,\151\
Syria,\152\ Somalia,\153\ South Sudan,\154\ and Yemen,\155\ which
allowed existing TPS beneficiaries to re-register for TPS and apply for
renewal of their EADs and allowed additional qualifying nationals who
arrived in the United States after the prior designation to apply for
TPS EADs. The Secretary also extended the TPS designation for El
Salvador,\156\ Honduras,\157\ Nicaragua,\158\ Nepal,\159\ and
Venezuela,\160\ thereby allowing existing TPS beneficiaries to re-
register for TPS and apply for renewal of their EADs.
---------------------------------------------------------------------------
\145\ 87 FR 30976 (May 20, 2022).
\146\ 87 FR 34706 (June 7, 2022).
\147\ 87 FR 76074 (Dec. 12, 2022).
\148\ 87 FR 23202 (Apr. 19, 2022).
\149\ 87 FR 23211 (Apr. 19, 2022).
\150\ 87 FR 58515 (Sept. 27, 2022).
\151\ 88 FR 5022 (Jan. 26, 2023).
\152\ 87 FR 46982 (Aug. 1, 2022).
\153\ 88 FR 15434 (Mar. 13, 2023).
\154\ 88 FR 60971 (Sept. 6, 2023).
\155\ 88 FR 94 (Jan. 3, 2023).
\156\ 88 FR 40282 (June 21, 2023).
\157\ 88 FR 40304 (June 21, 2023).
\158\ 88 FR 40294 (June 21, 2023).
\159\ 88 FR 40317 (June 21, 2023).
\160\ 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 200 percent increase in TPS-related 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.\161\ As of January 2024, prior to publication of the 2024
TFR, the Secretary had redesignated and extended TPS for Cameroon \162\
and Syria.\163\
---------------------------------------------------------------------------
\161\ The 6 countries impacted by the withdrawal of TPS
Terminations (El Salvador, Haiti, Honduras, Nepal, Sudan, Nicaragua)
accounted for approximately 19,000 renewal EAD applications in
FY2022 and 193,000 renewal applications in FY2023. Source: USCIS
analysis 10/11/2024.
\162\ 88 FR 69945 (Oct. 10, 2023).
\163\ 89 FR 5562 (Jan 29, 2024).
\164\ 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).
---------------------------------------------------------------------------
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.
6. Combined Impact on Renewal EAD Application Processing Times
The events described in the previous sections resulted in a
significant increase in USCIS processing times for several categories
of automatic extension-eligible renewal EAD applications. For the
period leading up to the 2024 TFR, the most significant contributing
factor to these increased processing was the substantial surge in the
number of initial EAD applications based on pending asylum applications
(C08) that began in March 2023. This spike in filings, followed by a
sustained increase in receipts during FY 2023,\164\ substantially
increased processing times for renewal EAD applications because USCIS
was required to prioritize adjudication of C08 initial EAD applications
to comply with court-ordered deadlines for processing these case types
and to address other priorities.
As shown in Tables 6A. 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 6A--Initial and Renewal EAD applications
------------------------------------------------------------------------
EAD
Fiscal year applications Difference
------------------------------------------------------------------------
2022............................... 2,330,000
2023............................... 3,490,000 50 percent higher
than 2022.
------------------------------------------------------------------------
Table 6B--Initial EAD applications
------------------------------------------------------------------------
EAD
Fiscal year applications Difference
------------------------------------------------------------------------
2022............................... 1,340,000
2023............................... 2,370,000 77 percent higher
than 2022.
------------------------------------------------------------------------
Table 6C--Renewal EAD applications
------------------------------------------------------------------------
EAD
Fiscal year applications Difference
------------------------------------------------------------------------
2022............................... 990,000
2023............................... 1,120,000 13 percent higher
than 2022.
------------------------------------------------------------------------
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), followed by
TPS (A12/C19) and parole (C11).
[[Page 101223]]
[GRAPHIC] [TIFF OMITTED] TR13DE24.072
Consequently, the efforts USCIS undertook to improve its 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.
By February 2024, prior to the issuance of the 2024 TFR, the 80th
percentile processing time \165\ for renewal C08 EAD applications was
16 months, well beyond the targeted three-month processing time. By
February 2024, USCIS was also behind in its adjudications of other
automatic extension categories, including C09 (pending adjustment of
status application, 7.5 months), C10 (pending application for
suspension of deportation, 16.3 months), A12 (TPS, 11.2 months), A05
(asylee, 4.8 months), and A10 (granted withholding of deportation or
removal, 6.6 months).
---------------------------------------------------------------------------
\165\ 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 DHS, USCIS, Case
Processing Times, <a href="https://egov.uscis.gov/processing-times/more-info">https://egov.uscis.gov/processing-times/more-info</a>
(last visited Oct. 23, 2024).
---------------------------------------------------------------------------
Table 7 shows that the number of pending EAD applications did not
materially improve and, by the end of February of 2024, was
approximately 1.40 million applications, which posed a challenge for
USCIS and also impacted 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 automatic extension renewal EAD applications at the
end of February 2024 was approximately 439,000.
Table 7--Pending EAD Applications by Month
------------------------------------------------------------------------
Automatic
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, Office of Performance and Quality (OPQ), CLAIMS3,
ELIS, retrieved March 15, 2024.
[[Page 101224]]
As of February 2024, USCIS had approximately 439,000 pending
renewal EAD requests in the categories eligible for automatic
extension,\166\ and received an average of approximately 52,800
additional automatic extension-eligible renewal EAD applications per
month in FY 2023.\167\ These additional renewal applications added to
the backlog, given that USCIS completed approximately 49,100 automatic
extension-eligible renewal EAD applications per month at that
time.\168\
---------------------------------------------------------------------------
\166\ See Table 7 (Source: DHS, USCIS, OPQ, CLAIMS3, ELIS,
retrieved March 15, 2024). The vast majority of these renewal
applicants eligible for automatic extension fell 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.
\167\ 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.
\168\ See 89 FR 24628, 24644 (Apr. 8, 2024).
---------------------------------------------------------------------------
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.
In summary, based on a combination of factors, DHS projected at the
time that, between May 2024 to March 2026, approximately 800,000
renewal applicants eligible for an automatic extension would exceed the
180-day automatic extension period unless the 2024 TFR was issued.
C. Automatic Extension Period of up to 180 Days in Current 8 CFR
274a.13(d)(1) Is Insufficient
DHS is aware of the importance of employment authorization and EADs
as evidence of employment eligibility for applicants' and their
families' livelihoods, as well as their U.S. employers' continuity of
operations and financial health. DHS is also aware of the potential
detrimental impact that gaps in employment authorization may have on an
applicant's eligibility for future immigration benefits, should the
applicant engage in unauthorized employment during the gap,\169\ and on
the U.S. employer's responsibilities under the INA. DHS also
acknowledges that the factors that lead to substantial increases in
backlogs and prolonged renewal EAD application processing times are not
the fault of applicants but have had and may continue to have
significant adverse consequences for applicants and employers awaiting
a USCIS decision on pending renewal EAD applications. The public
comments received in relation to the 2022 and 2024 TFRs underscore the
importance of employment authorization and EADs.\170\
---------------------------------------------------------------------------
\169\ 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 sec. 245. See INA sec. 245(c)(2) and (c)(8), 8 U.S.C.
1255(c)(2) and (c)(8).
\170\ See section IV. Discussion of Public Comments, in this
preamble.
---------------------------------------------------------------------------
As illustrated by the examples elsewhere in this preamble,\171\ a
wide variety of often-unpredictable circumstances affecting USCIS
operations have led to significant increases in USCIS processing times
for several categories of renewal EAD applications. DHS has determined
that if the automatic extension period is not permanently increased to
540 days, many EAD renewal applicants could in the future be in danger
of experiencing a gap in employment authorization and/or EAD validity.
Without a permanent 540-day automatic extension period, one or more
events in the future, such as a surge in EAD application filings, may
result in hundreds of thousands of renewal EAD applications remaining
pending beyond the 180-day automatic extension period, and renewal
applicants may lose their employment authorization and/or EAD validity
through no fault of their own. DHS has also determined that reacting to
such circumstances by providing temporary extensions through the means
of TFRs is neither an efficient solution nor is it sustainable for DHS,
USCIS, applicants and employers as such rapid policymaking exercises
occupy scarce government resources and do not provide long-term
stability and predictability for applicants, employers' business
operations, and the community as a whole.
---------------------------------------------------------------------------
\171\ See sections III. A-C. in this preamble.
---------------------------------------------------------------------------
As DHS has noted before in previous rulemakings, the loss of
employment authorization for asylum applicants is especially dire
because of the significant time that asylum applicants must wait to
become employment-authorized in the first place.\172\ By statute,
asylum applicants cannot be approved for initial EADs until their
asylum applications have been pending for at least 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.\174\ 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.\175\ 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.\176\ 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.\177\ The cost to travel to the
United States is high, as is the relative cost of living.\178\ 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.\179\ 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.\180\
---------------------------------------------------------------------------
\172\ See 87 FR 26614, 26619 (May 4, 2022) (explaining that a
now-vacated regulation in effect from August 2020 through February
2022 did not allow asylum applicants to apply for employment
authorization until their asylum applications had been pending for
at least 365 days, and, even absent that regulation, INA 208(d)(2),
8 U.S.C. 1158(d)(2) does not allow their employment authorization
applications to be approved until their asylum applications have
been pending at least 180 days); 89 FR 24628, 24644 (Apr. 8, 2024)
(same explanation).
\173\ See INA sec. 208(d)(2), 8 U.S.C. 1158(d)(2).
\174\ See 87 FR 26614, 26619 (May 4, 2022); 89 FR 24628, 24644
(Apr. 8, 2024).
\175\ See 87 FR 26614, 26619 (May 4, 2022); 89 FR 24628, 24644
(Apr. 8, 2024).
\176\ See 87 FR 26614, 26619 (May 4, 2022); 89 FR 24628, 24644
(Apr. 8, 2024).
\177\ See 87 FR 26614, 26619 (May 4, 2022); 89 FR 24628, 24644
(Apr. 8, 2024).
\178\ See 87 FR 26614, 26619 (May 4, 2022); 89 FR 24628, 24644
(Apr. 8, 2024).
\179\ See 87 FR 26614, 26619 (May 4, 2022); 89 FR 24628, 24644
(Apr. 8, 2024).
\180\ See 87 FR 26614, 26619 (May 4, 2022); 89 FR 24628, 24644
(Apr. 8, 2024).
---------------------------------------------------------------------------
Continuation of employment authorization and/or EADs is also a
requirement for their employers who must comply with Form I-9,
Employment Eligibility Verification, requirements in order to continue
to employ these employees.\181\ In addition, some employers,
notwithstanding
[[Page 101225]]
possible violation of section 274B of the INA, 8 U.S.C. 1324b
(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.\182\
---------------------------------------------------------------------------
\181\ See 8 CFR 274a.2(b)(1)(vii).
\182\ See 87 FR 26614, 26619 (May 4, 2022); 89 FR 24628, 24645
(Apr. 8, 2024).
---------------------------------------------------------------------------
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.\183\ 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.\184\ 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.\185\
The physical harm experienced by many asylum seekers frequently
necessitates continuous medical care for extended periods of time.\186\
Finally, the purpose for which asylum seekers came to the United States
is to seek long-term protection by receiving asylum.
---------------------------------------------------------------------------
\183\ See 87 FR 26614, 26619 (May 4, 2022); 89 FR 24628, 24645
(Apr. 8, 2024).
\184\ See 87 FR 26614, 26619 (May 4, 2022); 89 FR 24628, 24645
(Apr. 8, 2024).
\185\ See 87 FR 26614, 26619 (May 4, 2022); 89 FR 24628, 24645
(Apr. 8, 2024).
\186\ See 87 FR 26614, 26619 (May 4, 2022); 89 FR 24628, 24645
(Apr. 8, 2024).
---------------------------------------------------------------------------
In addition, having unexpired employment authorization and EADs is
necessary for certain noncitizens such as asylum applicants and TPS
beneficiaries when they require proof of identity or immigration
status. For example, 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.\187\ Following full implementation of REAL ID requirements, if an
individual chooses to present a state-issued driver's license or
identification card for defined official purposes, including access to
certain Federal facilities and boarding federally regulated commercial
aircraft, the driver's license or identification card must be REAL ID-
compliant.\188\ Without an unexpired EAD, certain classes of
noncitizens would not be able to apply for REAL ID-compliant driver's
licenses or identification cards.\189\
---------------------------------------------------------------------------
\187\ 6 CFR 37.11(c).
\188\ REAL ID Act of 2005, Public Law 109-13, div. B, Title II,
Sec. 201(3) (May 11, 2005); 6 CFR Part 37.
\189\ 6 CFR 37.11(c)(1) lists the identity documents applicants
of REAL ID-compliant driver's licenses and identification cards must
provide.
---------------------------------------------------------------------------
To reduce the chance of the harmful effects caused by such lapses,
DHS is permanently amending existing DHS regulations to increase the
automatic extension period from up to 180 days to up to 540 days for
all eligible renewal EAD application categories under 8 CFR 274a.13(d).
IV. Discussion of Public Comments
A. Summary of Comments on the 2024 TFR
In promulgating the 2024 TFR, DHS invited the public to participate
in the rulemaking by submitting comments and written data on any part
of the 2024 TFR. In light of the concern about potential future lapses
in employment authorization and/or the validity of their EAD as a
result of spikes in application filings and other circumstances that
impact USCIS processing of renewal EAD applications, DHS also invited
the public to comment on the following three aspects:
<bullet> Whether DHS regulations should be revised to permanently
lengthen the automatic extension period to up to 540 days for
employment authorization and/or EAD validity for eligible renewal
applicants;
<bullet> Whether a different 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 automatic extension provisions.\190\
---------------------------------------------------------------------------
\190\ 89 FR at 24648, 24674.
---------------------------------------------------------------------------
The 2024 TFR provided a 60-day period for the public to submit
comments at <a href="http://www.regulations.gov/">http://www.regulations.gov/</a> using the DHS docket number DHS
Docket No. USCIS-2024-0002. In response to the request for comments,
DHS received a total of 152 public comment submissions.
Comments were submitted by a range of entities and individuals,
including attorneys and legal service providers, applicants,
applicant's family members, professional organizations, unions,
advocacy groups, international organizations, religious organizations,
research and community organizations, and state and local government
agencies or elected officials.
B. General Support for the 2024 TFR
Comment: Many commenters expressed their support for the 2024 TFR
based on the positive impacts and benefits the 2024 TFR would have on
noncitizens, their employers, their families, their support systems,
their communities, and the public. Many commented on the devastating
effects caused by gaps in employment authorization and documentation,
including job loss, gaps in driver's license privileges and other
professional licensing, and exploitation. Citing research, a commenter
wrote that gaps in employment authorization and the concomitant
financial instability also leave immigrants vulnerable to labor
trafficking and exploitation.
Commenters also stated that allowing applicants to continue to be
able to work while waiting for USCIS to adjudicate their renewal EAD
applications provided stability and job security for those workers and
their families. Other commenters remarked that employment authorization
is a critical tool that helps noncitizens successfully integrate into
the United States and promotes self-sufficiency. Many commenters stated
that non-citizens should not have to fear the loss of employment due to
lengthy USCIS processing times.
A commenter pointed out that the ability to work is especially
important for marginalized noncitizens. Another commenter wrote that
asylum seekers deserve the same right to work as U.S. citizens and
expressed support for the longer extension period.
A few commenters noted that the automatic EAD extension would give
relief to legal services providers who are already overburdened by high
caseloads, time-consuming work related to EAD delays and renewals, and
staffing shortages. One commenter stated that gaps in employment
authorization due to USCIS processing delays cause applicants relying
on pro bono legal services significant distress, which, in turn creates
more work for the services' overburdened staff.
A few commenters noted the concerns that having expired employment
authorization aggravates the abuse, labor violations, and retaliation
that noncitizens already encounter in the workplace, leading these
noncitizens to take jobs that are underpaid and present unsafe working
conditions. One commenter stated that Black people, indigenous people,
and other people of color are particularly susceptible to working in
dangerous jobs and the informal economy, leading to more encounters
with law enforcement.
[[Page 101226]]
One commenter remarked that many workers are disincentivized from
reporting labor violations and poor working conditions due to concerns
over workplace abuse and retaliation from employers taking advantage of
gaps in work authorization, thereby reinforcing the need for timely
processing of work authorization and the commenter's support for the
rule.
Indicating an understanding of the difficulties that gaps in work
authorizations can cause to both foreign-born workers and business
operations, a commenter expressed appreciation for USCIS' efforts to
improve the harmful impacts of backlogs in the adjudication of EAD
applications.
Response: As outlined in the 2024 TFR, DHS is aware that an
automatic extension period of up to 180 days insufficiently addresses
the stresses of the EAD renewal process on applicants, their families,
legal services providers, and employers, and takes note of the
consequences for these groups when renewal EAD applications are not
timely processed. DHS is aware of the many benefits that the DHS TFRs
provided to eligible renewal EAD applicants by increasing the automatic
extension period to up to 540 days and DHS believes that making the up
to 540-day automatic extension permanent is necessary to mitigate
against these harms on a long-term basis.
C. General Opposition to the 2024 TFR
Comment: A commenter expressed opposition to the 2024 TFR,
reasoning that, by publishing the rule in the Federal Register, DHS did
not provide enough transparency for the public because the public does
not read the Federal Register. The commenter stated that no foreigners
should be in the United States. The commenter alleged that the 2024 TFR
would allow noncitizens to remain in the United States, during which
time they would participate in fraudulent election activities and other
criminal activities that according to the commenter they are paid to
commit.
Response: By law, substantive agency rules of general applicability
are published in the Federal Register.\191\ The Federal Register is the
official daily publication to notify the public of rules, proposed
rules, and notices of Federal agencies and organizations. Therefore,
DHS followed the standard method of providing notice of the 2024 TFR
and an opportunity to comment. The commenter's remarks about the
potential for noncitizens to engage in unlawful actions are speculative
and beyond the scope of this rulemaking, and therefore we will not
address them. The purpose of the 2024 TFR was amply laid out in the
preamble to that document,\192\ and has nothing to do with alleged
election fraud or enabling criminal activity.
---------------------------------------------------------------------------
\191\ See 5 U.S.C. 552, 553; see also 44 U.S.C. Chapter 15
(Federal Register and Code of Federal Regulations).
\192\ See, e.g., 89 FR 24628, 24628-29 (Apr. 8, 2024).
---------------------------------------------------------------------------
Comment: A commenter indicated that the automatic extension does
not help because companies generally will not employ someone with a
facially expired EAD.
Response: DHS notes that an employer that rejects acceptable
documentation for Form I-9, Employment Eligibility Verification, that
appears to be genuine and relates to the employee, based on the
employee's citizenship status or national origin, may violate the INA's
anti-discrimination provision, found in Section 274B of the INA, 8
U.S.C. 1324b.\193\ The INA prohibits discrimination against employees
and applicants for employment in hiring, firing, and recruitment on the
basis of citizenship status or national origin, unfair documentary
practices, as well as retaliation for engaging in protected activity,
such as filing a complaint based on these prohibited actions.\194\ The
U.S. Department of Justice, Civil Rights Division, Immigrant and
Employee Rights Section (IER) enforces the INA's anti-discrimination
provision.\195\ Employees may seek redress through IER, whose
jurisdiction includes investigating claims that valid documentation was
rejected during the Form I-9 process based on a worker's citizenship
status or national origin. To address concerns that employers will not
hire someone with a facially expired EAD, USCIS also has clarified
guidance and tools available on its website to help employers
understand the requirements for eligibility for extensions of
employment authorization and/or EADs.\196\
---------------------------------------------------------------------------
\193\ DHS, USCIS, M-274, Handbook for Employers, Section 11.2
Types of Employment Discrimination Prohibited Under the INA (last
reviewed/updated July 25, 2023), <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/112-types-of-employment-discrimination-prohibited-under-the-ina">https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274/110-unlawful-discrimination-and-penalties-for-prohibited-practices/112-types-of-employment-discrimination-prohibited-under-the-ina</a> (last visited
Oct. 23, 2024).
\194\ See 8 U.S.C. 1324b.
\195\ See DOJ, Civil Rights Division, Immigrant and Employee
Rights Section, <a href="https://www.justice.gov/crt/immigrant-and-employee-rights-section">https://www.justice.gov/crt/immigrant-and-employee-rights-section</a> (last visited Oct. 23, 2024).
\196\ See DHS, USCIS, Automatic Employment Authorization
Document (EAD) Extension (last reviewed/updated Oct. 9, 2024),
<a href="https://www.uscis.gov/eadautoextend">https://www.uscis.gov/eadautoextend</a> (last visited Oct. 23, 2024)
(including the Automatic Extension Eligibility Calculator tab).
---------------------------------------------------------------------------
D. Legal Authority
Comment: Some commenters noted that DHS was acting within its legal
authority when it issued the 2024 TFR. A commenter supporting the 2024
TFR wrote that ``adequate reception conditions are a necessary
component of fair and efficient asylum procedures,'' and that access to
work for asylum-seekers and other similarly situated populations is
linked to the quality of reception conditions for asylum seekers. A
commenter expressed support for the rule and commended DHS for
preparing what it called a thorough analysis supporting the legal
aspects of the 2024 TFR.
Response: DHS agrees that it had ample legal authority to publish
the 2024 TFR. DHS's primary goal was to help prevent a lapse in
employment authorization and/or documentation for eligible renewal EAD
applicants.
E. Purpose of the 2024 TFR
Comment: Several commenters addressed the purpose of the 2024 TFR.
One commenter wrote that DHS is correct in ``trying to find a path
forward'' to process EAD applications and renewals, noting that the
current situation seems ``dire.'' A commenter commended DHS's proactive
efforts given the potential uncertainty surrounding the projected
260,000 renewal EAD applicants facing a lapse in employment beginning
in October 2025. The same commenter said that the imminent and near-
term needs of applicants and their U.S. employers justify the up to
540-day automatic extension period provided by the 2024 TFR to address
these needs and expressed the need to develop a longer-term solution
after soliciting additional input and thoroughly assessing the effects
of USCIS policy and operational changes.
Other commenters noted their support of DHS's efforts to reduce
backlogs, decrease processing times, streamline EAD application
processing, and increase the maximum validity period to 5 years for
certain EAD categories. Another commenter said that such efforts have
not only resulted in improvements for EAD recipients, but also for
resettlement case workers and legal service program staff who have
saved time assisting clients to obtain these vital documents. A
commenter indicated that, more broadly, the U.S. government's ongoing
efforts around backlog reduction of the asylum backlog would prevent it
from growing further, which, in turn, would reduce the need
[[Page 101227]]
for asylum seekers to renew EAD applications and will help mitigate the
risks that those who are eligible for employment authorization and
documentation face lapses in access. Another commenter remarked that
DHS's efforts to decrease processing times generally and facilitate the
EAD application process would alleviate burdens for migrant workers and
their families.
A commenter wrote that ensuring the right to work in fair
conditions is enshrined in both international law and U.S. labor law,
that a person is to be protected from labor violations and labor
trafficking regardless of immigration status, and that the Refugee
Convention framework calls upon the United States to guarantee labor
protections to refugees and asylum seekers. The commenter asserted that
the current employment authorization framework, with short
authorization periods that lapse without adequate infrastructure to
timely process renewals, violates these laws and that the U.S.
government would benefit from an up to 540-day extension or longer as
it retains the authority to withdraw an authorization should a benefit
be denied or revoked. The commenter wrote that gaps in employment
authorization undermine the United States' fulfillment of Article 24(1)
of the 1951 Refugee Convention, and do not conform with the standards
set forth in Article 6(1) of the International Covenant on Economic,
Social and Cultural Rights, which urges states to ``recognize the right
to work[.]'' \197\
---------------------------------------------------------------------------
\197\ The United States has not ratified the International
Covenant on Economic, Social and Cultural Rights.
---------------------------------------------------------------------------
Another commenter added that DHS's efforts to ensure continued
access to work authorization and documentation for refugees and asylum
seekers as reflected in the 2024 TFR are consistent with international
human rights and refugee law. Similarly, one commenter wrote that
asylum seekers account for about 80 percent of the 800,000 work permit
renewal applicants who might lose work authorization without the
benefit of the 2024 TFR.
Some commenters wrote that the backlog in processing EAD
applications was not the workers' fault. While referencing an article
in which a USCIS spokesperson was cited, a commenter wrote that
preventing noncitizens from losing their work authorization would align
with USCIS' priorities of preventing work authorizations for
noncitizens from expiring through no fault of their own.
Response: DHS agrees with those commenters who point out that the
needs of EAD renewal applicants can be urgent and that addressing the
imminent expiration of EADs for affected individuals is a critical
priority. DHS also agrees with those commenters who note that workers
with EADs are not at fault for the backlog. Correspondingly, DHS is
issuing this final rule to address these concerns long-term and to
prevent gaps in employment authorization for eligible renewal EAD
applicants.
DHS disagrees with the commenter's assertion that the current
employment authorization scheme violates or is inconsistent with U.S.
obligations under international law and specifically the 1951 Refugee
Convention. Although the United States is a party to the 1967 Protocol,
which incorporates Articles 2 to 34 of the 1951 Refugee Convention,
this treaty is not self-executing; consequently, it is not directly
enforceable in U.S law. It is the domestic implementing law that
governs, and Supreme Court and other case law makes clear that the
Protocol serves only as a useful guide in determining congressional
intent in enacting the Refugee Act of 1980 because the Act sought to
bring U.S. law into conformity with the Protocol. See, e.g., INS v.
Stevic, 467 U.S. 407, 428 n.22 (1984); Khan v. Holder, 584 F.3d 773,
783 (9th Cir. 2009).
Congress implemented U.S. obligations with respect to certain
provisions of the Refugee Convention in the Refugee Act of 1980. The
Refugee Act, in particular, included provisions implementing Article 34
of the 1951 Convention, which provides that State Parties ``shall as
far as possible facilitate the assimilation and naturalization of
refugees.'' Congress implemented Article 34 primarily through the INA's
discretionary asylum and asylee and refugee adjustment of status
provisions at sections 208 and 209 of the INA, 8 U.S.C. 1158, 1159. See
INS v. Cardoza-Fonseca, 480 U.S. 421, 441 (1987). As the Supreme Court
has recognized, Article 34 is ``precatory'' and ``does not require [an]
implementing authority actually to grant asylum to all'' noncitizens
determined to meet the definition of a refugee. Id.
DHS also notes that the INA provisions and DHS regulations
applicable to refugees and asylees fully comply with U.S. obligations
under Articles 17 and 31 of the Refugee Convention, as incorporated in
the 1967 Protocol. Note that paragraphs (1) and (3) of Article 17
related to wage-earning employment state that ``The Contracting State
shall accord to refugees lawfully staying in their territory the most
favourable treatment accorded to nationals of a foreign country in the
same circumstances, as regards to engage in wage-earning employment,''
and that ``The Contracting States shall give sympathetic consideration
to assimilating the rights of all refugees with regard to wage-earning
employment to those of nationals, and in particular of those refugees
who have entered their territory pursuant to programmes of labour
recruitment or under immigration schemes.''
Even if Article 17 imposes any binding obligations, nothing in
Article 17 requires DHS to provide employment authorization to
noncitizens seeking refugee status or asylum before DHS or an IJ has
made a final determination that they meet the definition of a refugee
under 101(a)(42) of the INA, 8 U.S.C. 1101(a)(42), and grant the
individual's application on that basis. Under the INA, DHS is not
required to provide work authorization for asylum applicants, but DHS
generally does so pursuant to its discretion. See INA section
208(d)(2), 8 U.S.C. 1158(d)(2); 8 CFR 208.7, 274a.12(c)(8). Once DHS or
an IJ has determined that a noncitizen meets the definition of a
refugee and has been granted status, the noncitizen is immediately
authorized to work pursuant to their status, consistent with the
statute and regulations governing employment authorization for those
who have been granted refugee status or asylum. See INA 208(c)(1)(B), 8
U.S.C. 1158(c)(1)(B); 8 U.S.C. 1738; 8 CFR 274a.12(a)(3), (a)(5).
DHS also believes that the employment authorization framework and
this rule comply with U.S. obligations under Article 31.1 of the
Refugee Convention, which also is non-self-executing. See Refugee
Convention, Article 31.1 (``[C]ontracting States shall not impose
penalties, on account of their illegally entry or presence, on refugees
who, coming directly from a territory where their life or freedom was
threatened . . . enter or are present in their territory without
authorization, provided they present themselves without delay to the
authorities and show good cause for their illegal entry or
presence.''). DHS is not imposing a penalty on refugees who entered the
United States without authorization or are unlawfully present.
DHS, however, acknowledges that the up-to-180-day automatic
extension can lead to gaps in employment authorization owing to
operational considerations, and a permanent 540-day automatic extension
will better protect against disruptions to EAD applicants, their
families, and their
[[Page 101228]]
employers. DHS also acknowledges the fact that asylum applicants are
one of the principal populations affected by the extension provided by
the 2024 TFR, and that the processing time for asylum applications is
an important consideration in the development of EAD renewal policies.
DHS also agrees with commenters' observations that DHS has made
important efforts to reduce processing times generally; such reductions
in processing times benefit all EAD applicants.
F. Positive Impacts of the 2024 TFR
Comment: Multiple commenters supported the 2024 TFR, stating that
longer EAD automatic extensions would, as estimated by DHS in the 2024
TFR, prevent over 800,000 noncitizens from losing their employment
authorization and, as a result, losing their jobs. Numerous commenters
stated that the increased temporary EAD automatic extension period
would provide stability to noncitizens and allow them to continue
supporting themselves and their families while awaiting a decision on
their renewal EAD applications. One commenter stated that they
frequently hear complaints from Oregon's immigrant community that
current employment authorization renewals were extremely onerous for
immigrants and their employers, and this immigrant community had
reported pushback from employers while periodically seeking to renew
their EADs. According to this commenter, some within this community had
to take unpaid leave while waiting for their reextended EADs to arrive
due to USCIS processing delays. This commenter indicated that immigrant
households often having little or no available safety net when these
individuals lose their ability to work for extended periods of time due
to USCIS processing delays. According to the commenter, the 2024 TFR,
while not solving the problem, would give the Oregon immigrant
community members more job security, enabling them to provide for their
families, and bolster Oregon's economy.
A commenter wrote that the U.S. labor and employment laws generally
protect all employees regardless of their immigration status. The
commenter stated that Title VII of the Civil Rights Act of 1964
prohibits employment discrimination on the grounds of race, color,
religion, sex or national origin, and that noncitizen employees may
also bring claims for violations of wage and hour protections,
occupational health and safety violations, and more. The commenter
stated that the 2024 TFR would provide further protections for
noncitizen employees who are vulnerable to labor violations and
mistreatment.
Another commenter said that refugees, TPS holders, asylum seekers,
and immigrants with pending green card applications or withholding of
removal need the protection afforded by the 2024 TFR in order to be
productive members of society. A commenter remarked that employment
authorization is a critical tool that helps noncitizens in its state
successfully integrate into the United States.
Other commenters reasoned that a permanent increase would benefit
the U.S. Government, service providers, employers, and workers thanks
to less paperwork, more continuity and stability in business staffing,
increased worker productivity, and family stability. Another commenter
said that a permanent extension would augment its own efforts to place
employment-authorized individuals into the workforce by ensuring that
those individuals can retain employment authorization.
A commenter addressed the stress and time demands required of its
clients to maintain vigilance and valid EADs despite ongoing delays in
processing and EAD expirations, stating that increasing the automatic
renewal period from 180 to 540 days would reduce harmful delays. The
commenter also noted that due to long USCIS processing times, even
applicants who apply for a renewal EAD 180 days prior to expiration of
their current EAD are at risk of losing work authorization, and that
the 2024 TFR's extensions are necessary due to the lengthy processing
times.
Some commenters wrote that asylum seekers are fleeing persecution
and poverty in their home countries and lapses in work authorization
contribute to instability and create anxieties for this population.
Similarly, some commenters wrote that survivors of gender-based
violence are particularly vulnerable and need timely access to
employment authorization and economic opportunities.
Some commenters reasoned that delays in adjudicating asylum
applications add to the total delays in work authorization for many
noncitizens. A commenter addressed the long affirmative asylum backlog,
writing that some of their LGBTQ+ immigrant clients wait years to
receive decisions and that the automatic extension increase would
benefit clients who otherwise might lose employment, health insurance,
and housing and may experience food insecurity.
Several commenters expressed support for the 2024 TFR on the
grounds that it would help individuals to maintain their licenses for
work, such as truck drivers, ride-share drivers, and delivery service
workers. These commenters also described the utility of EADs as a form
of recognized identification, including for government interactions or
travel, writing that such documentation is particularly needed for
noncitizens who may no longer have access to passports or foreign birth
certificates.
Some commenters opined that the automatic extensions are
beneficial, but that USCIS should do more, with one commenter
characterizing automatic extensions as merely ``a band-aid solution for
a larger problem.''
Response: DHS believes that the positive impact of the 2022 and the
2024 TFR demonstrates the value in having longer automatic extension
periods. This final rule provides a long-term solution that should
result in more continuous employment authorization and/or EAD validity
that is more efficient for USCIS to administer and more predictable for
renewal EAD applicants and their employers. DHS believes that it will
provide stability and protection to renewal EAD applicants who are
already authorized to work, as well as their families, their employers,
the U.S. economy, and the public at large. Stability and predictability
are particularly important given the vital role of the EAD that serves
not only employment eligibility verification purposes, but also other
purposes such as identity and immigration status verification for
eligible public benefits and services.
G. Impacts on U.S. Employers and the Economy
1. Provide Stability and Decrease Burdens for U.S. Employers
Comment: Multiple commenters said that the 2024 TFR and the
increased automatic extension period would provide stability for
employers, such as by relieving businesses from the impacts of losing
or changing employees and associated hiring and training costs. Another
commenter wrote that U.S. employers would benefit from smoother
operations with more continuity and stability in staffing and that this
benefit to businesses would support overall U.S. economic growth.
Commenters, citing the 2024 TFR, also stated that the rule would
protect up to 82,000 employers and that businesses and organizations
would incur approximately $17.4 billion in labor
[[Page 101229]]
turnover costs if EAD recipients were to lose their work
authorizations.
Response: DHS acknowledges the 2024 TFR's benefits for U.S.
employers and, by extension, the U.S. economy. As discussed in the 2024
TFR, the potential effects of widespread lapses of EADs and employment
authorization on U.S. employers were a significant reason for issuing
the rule.\198\
---------------------------------------------------------------------------
\198\ See 89 FR 24628, 24652, 24656 (Apr. 8, 2024).
---------------------------------------------------------------------------
Comment: Some commenters remarked that the 2024 TFR would lessen
the paperwork demands of repeated EAD renewals for U.S. employers, with
one commenter stating that employers, due to high employee turnover on
account of expiring work authorizations, find themselves scrambling to
verify new-employee employment authorization or determine when
reverification needs to occur, all while operating under the risk of
civil monetary penalties if they do not properly maintain employment
paperwork.
Some commenters further wrote that the 2024 TFR and a permanent
increase of the automatic extension period would increase worker morale
and productivity by keeping workloads consistent.
Response: DHS acknowledges these positive effects of the 2024 TFR
on employers and their workforce.
2. Contributions to Local, State, and U.S. Economy
Comment: Several commenters wrote in support that the 2024 TFR
would benefit the U.S. economy, as worker retention and reduced
turnover would stabilize the labor market. Referencing research,
another commenter similarly stated that immigrants make significantly
more economic contributions to the U.S. economy than they take away
from State benefits or other State programs.
Commenters described programs in states and cities that connect
arriving noncitizens with immigration legal services, including
employment authorization assistance. These commenters described the
economic benefits the immigrant population provide to their regions and
the critical role that continuous access to EADs plays in supporting
immigrant workers.
Expressing support for the 2024 TFR, a few commenters remarked that
allowing noncitizens to work in legal ways and pay taxes benefits the
U.S. economy. One commenter further reasoned that the 2024 TFR is
beneficial because when noncitizens are able to work, they provide
additional tax funding for public expenditures such as social services,
education, infrastructure, and national security.
Response: DHS agrees that the 2024 TFR has had positive economic
effects.
3. Alleviate Shortages in the U.S. Labor Market
Comment: Several commenters stated that the 2024 TFR would allow
noncitizens to be a steady work force to fill jobs in needed fields,
such as agriculture, construction, and health care, service industries,
and warehouses. Commenters stated that employers and business leaders
continually express that immigrant workers are essential to the U.S.
economy, and that successful organizations consider the immigration
system a resource for positions that are hard to fill, for seasonal or
temporary workers, and for enriching their workforce with new cultures
and ideas.
Similarly, commenters described shortages within the U.S. labor
market and expressed support for the TFR to address those shortages.
Referencing research, commenters stated that the U.S. labor market has
both acute and chronic labor shortages and that increased levels of
migration into the U.S. addresses declines in the U.S. labor force due
to the aging population. One commenting organization recommended that
USCIS implement administrative policies that aid businesses with work
permit-related processes.
Response: DHS agrees that noncitizens contribute significantly to
the U.S. economy and that the 2024 TFR and this rule help ensure that
such contributions are not interrupted because of USCIS processing
delays.
H. Impacts on the U.S. Government
Comment: Commenters wrote that the 540-day extension established in
the TFR would benefit USCIS by relieving the pressure of the backlog.
Some noted that the current automatic 180-day EAD work extension is
insufficient, as USCIS often takes more than 1 year to process an
application, and they supported the extension so that USCIS would have
more time to process applications.
Commenters reasoned that the TFR would reduce the need for EAD
renewal processing and thus would reduce USCIS resource challenges,
allowing the agency to better allocate its staff time. Similarly, a
commenter stated that the automatic extension of EADs would allow USCIS
to focus resources on case-based analysis in areas other than EAD
renewals.
Several commenters stated that the TFR would benefit DHS by
providing more time to consider long-term solutions suggested in public
comments, evaluate policies and operations, and identify new strategies
to improve review of EAD applications.
Response: While DHS continues to emphasize adjudication of pending
EAD renewals, DHS acknowledges these comments and notes that these
positive effects on the U.S. government were among the reasons for the
2024 TFR.\199\
---------------------------------------------------------------------------
\199\ 89 FR 24628, 24648 (Apr. 8, 2024).
---------------------------------------------------------------------------
I. Allow a Second 540-Day Automatic Extension Period for Noncitizens
who Received the 2022 TFR Automatic Extension
Comment: A commenter stated that the TFR appears to exclude
applicants who already received an automatic extension through the 2022
TFR.\200\ The commenter said that applicants who applied in 2022 and
are nearing the end of their previous extension could be ineligible for
this new extension despite meeting all other criteria and still having
a pending application due to processing delays. The commenter inquired
about a solution to ensure that those described applicants could be
eligible for the new extension.
---------------------------------------------------------------------------
\200\ See 89 FR 24628, 24649 (April 82024). See 87 FR 26614 (May
4, 2022).
---------------------------------------------------------------------------
Response: While DHS is committed to preventing gaps in employment
authorization and/or EAD validity in the future for applicants, as of
June 30, 2024, about 150, or 0.06 percent, of pending renewal EAD
applications had been pending beyond the end of the 540 day automatic
extension period provided in the 2022 TFR, which signals that a second
automatic extension period would have a marginal benefit at best.\201\
Based on a July 2024 analysis, USCIS projects that upwards of 46,000
renewal applicants may lose at least 1 day of employment authorization
and/or documentation between July 2024 and March 2027. This population
includes approximately 21,000 noncitizens who filed renewal EAD
applications covered by the 2022 TFR. These 21,000 expirations would
occur between July 2024 and September 2025, with most expirations
occurring after January 2025. The timing of these projected expirations
will allow USCIS time to address these cases. USCIS has taken
operational steps, such as training more officers to adjudicate C10
renewal EAD applications, to further reduce the number of EAD renewal
applicants who may lose at least 1 day of employment
[[Page 101230]]
authorization and/or documentation. Therefore, DHS declines to adopt a
second extension period for those individuals who were covered by the
2022 TFR.
---------------------------------------------------------------------------
\201\ See DHS, USCIS, OPQ, I-765 Application for Employment
Authorization Automatic Extension Eligible Renewals Pending Beyond
540 Day Automatic Extension Pending as of June 30, 2024, CLAIMS 3 &
ELIS, queried 08/2024 (showing that as of June 30, 2024, out of
approximately 260,000 pending renewal EAD applications, under 150
were pending for more than 540 days after expiration).
---------------------------------------------------------------------------
J. Make Permanent and Extend the Temporary Automatic Extension Period
Beyond 540 Days
1. Permanent Increase to the Automatic Extension Period
Comment: Many commenters endorsed a permanent increase to the
automatic extension period. Commenters remarked that without a
permanent increase, those who do not fall into up-to-5-year EAD
categories are likely to experience lapses in employment starting in
April 2026.
Response: As explained in the 2024 TFR,\202\ the up to 180-day
automatic extension period applies only to EAD renewals 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.\203\ For the reasons explained
in Part III.C of this preamble, however, DHS does support making the up
to 540-day automatic extension period permanent, and is implementing
this change in this rulemaking.
---------------------------------------------------------------------------
\202\ See 89 FR 24628, 24632 (Apr. 8, 2024).
\203\ See 8 CFR 274a.13(d).
---------------------------------------------------------------------------
i. Increase Necessary To Address Processing Backlogs
Comment: Many commenters indicated that it is unlikely USCIS can
eliminate the processing backlog within the next 2 years, and that DHS
should thus make the 540-day automatic extension period a permanent
inclusion in the regulations. These commenters argued that this would
provide stability to immigrant workers and employers past the rule's
implementation period. Commenters said that the recurrent use of
temporary rulemaking to increase the automatic extension period signals
the need for more permanent solutions to meet current and future needs.
One commenter said that the uncertainty generated by successive
temporary fixes harms workers by allowing employer misconduct and
creating worker anxiety. Similarly, another commenter stated that
waiting to issue another rule with another extension, which would then
be subject to another notice-and-comment period, would fail to protect
against subsequent processing delays. Commenters also added that the
current delays in processing and the ongoing need for expanded validity
periods are unlikely to change, thereby weighing in favor of a
permanent increase to the automatic extension period, but that DHS
could in a future rulemaking end such a permanent increase if
processing times improve. A commenter said that a permanent extension
would save taxpayer dollars by reducing labor costs and overtime hours.
Response: DHS agrees that the automatic extension should be made
permanent and is making the up to 540-day automatic extension period
permanent with this final rule.
ii. Benefit to USCIS
Comment: While supporting DHS's efforts to address existing
backlogs, a commenter stated that the measures in place would not
meaningfully reduce backlogs enough to account for the unprecedented
rise in global displacement and increased migration. Other commenters
indicated that a permanent extension would provide USCIS the
opportunity to reallocate resources and continue to process backlogs
more efficiently and result in less negative feedback and
communication, particularly because past automatic EAD extensions have
been successful. A commenter indicated that previous up-to 540-day
automatic extensions coincided with significant improvements in EAD
processing times, without undermining the integrity of the immigration
system.
Response: DHS agrees that the automatic extension should be made
permanent and is making the up to 540-day automatic extension period
permanent in this rulemaking.
iii. Benefit to Workers
Comment: Many commenters remarked on the potential benefits of a
permanent extension for workers, their families, and communities,
including long-term predictability and reduced anxiety around job
stability. Some commenters stated that a permanent extension of the
automatic extension period would ease burdens on non-governmental
organizations and community partners, because the individuals would
have more clear pathways to self-sufficiency with stable work. Other
commenters said that a permanent extension would help workers continue
to provide for their families, while simultaneously addressing labor
shortages and strengthening the economy. Some commenters referenced
numerous examples of individuals who have been affected by EAD renewal
delays and the significant hardships they have faced as a result.
Commenters also stated that noncitizens in the workforce are
particularly vulnerable to workplace harassment, exploitation, and
violence, which would be worsened by gaps in employment authorization.
One of these commenters said that without a permanent 540-day automatic
extension in place, affected workers may be unwilling to report labor
violations if their statuses lapse because of the fear of retaliation
or deportation. Another commenter said that making the change permanent
would protect against radical shifts in policy in the event of a new
presidential administration, which could otherwise affect the
continuity of EADs.
Response: DHS agrees that the increased automatic extension period
of up to 540-days should be made permanent. For the reasons explained
in this rulemaking, DHS is making the up to 540-day automatic extension
period permanent in this rulemaking.
iv. Benefit to Employers
Comment: Some commenters said that a permanent increase of the
automatic extension period to up to 540 days would enhance workforce
stability for employers, prevent disruptions, and limit the resource
intensive task of finding workers to replace those lost because of
administrative barriers.
Other commenters added that a permanent extension would simplify
and clarify oversight for employers. One commenter remarked that the
current Form I-9, Employment Eligibility Verification, process is
confusing for employers and would only become more confusing with
repeated temporary rulemakings, because with each subsequent temporary
rule, a new temporary period would be added to 8 CFR 274a.13(d), as was
done for each of the first two TFRs. The commenter argued that this
constant updating and adding of provisions is confusing for employers,
workers, and the general public. Others said that a permanent increase
of the automatic extension period would maintain the continuity of
business operations, ensure that employers would not inadvertently
allow workers to work with lapsed authorizations, and, citing reports
on the impacts of lapses in work authorization on employers, afford
increased security and clarity to the business community.
A commenter said that employers would benefit from the increased
stability a permanent extension would provide, because since 2021,
employers have regularly lost critical workers due to processing
delays. Another commenter urged USCIS to limit disruptions to
employment and make working with legal authorization more accessible
and easily attainable.
[[Page 101231]]
Response: DHS agrees that the automatic extension period of up to
540 days should be made permanent. For the reasons explained in this
rulemaking, DHS is making the automatic extension permanent in this
rulemaking.
2. Increase the Automatic Extension Period to 730 Days
Comment: Multiple commenters requested that DHS implement a 730-day
automatic extension period instead of another 540-day extension period.
One commenter making this request mentioned a 720-day period, but did
not distinguish this from a 730-day period. A commenter stated that
DHS's goal of addressing near-term needs would still be met by a 730-
day extension period, and that a longer period would ameliorate the
anxieties experienced by workers, itself a significant near-term need.
A commenter said that during the last 540-day automatic extension
period under the 2022 TFR, the commenter represented individuals who
properly, timely filed their EAD renewals and did not have their EAD
applications adjudicated within 540 days. The commenter stated that
there would be no downside in offering a longer extension period, only
significant benefits. Another commenter said that increasing the
automatic extension period to 730 days would preserve and enhance
immigrant workers' contributions through increased taxes, productivity,
and entrepreneurship, as well as provide more stability for businesses
at risk of losing employees and strengthen hiring prospects for
immigrants of color whose uncertain legal status may otherwise
jeopardize their job options.
Many commenters reasoned that a 730-day extension would be
particularly important because, under the 540-day extension of the 2024
TFR, hundreds of thousands of individuals would still be susceptible to
a lapse in employment authorization, which could be harmful for workers
and businesses alike. A commenter said that, while there may be
operational challenges involved with a 730-day extension, the benefits
would outweigh the burdens, which could be mitigated through
educational materials to reduce confusion and by specifying that
(a)(12) and (c)(19) EAD categories would remain at 540 days. Another
commenter echoed this view, stating that although employers have
adequately handled changes to validity dates before, the agency could
minimize employer confusion by taking reasonable steps to keep them
informed.
Other commenters specified that DHS should provide a 730-day work
permit extension to all eligible applicants, including those who
previously received a 540-day extension under the 2022 TFR. The
commenters said this approach would clarify guidance for employers
while ensuring that immigrant workers do not fall out of the workforce
due to processing delays. A few commenters wrote that because
noncitizens are integral to the workplace, industries and the larger
economy would be hurt by a lapse in work authorizations.
A commenter remarked that a 540-day or 730-day automatic extension
would help individuals maintain stable housing and access to healthcare
and childcare, which would ultimately improve mental well-being and
reduce trauma. Similarly, a commenter said that a 730-day extension
would better protect noncitizens who are already navigating complex
asylum procedures and processing significant trauma while caring for
their families. A commenter said that organizations working on behalf
of noncitizens experiencing processing delays would also benefit,
thereby allowing legal service providers to focus on long-term
stability options for clients.
A commenter expressed concerns that a 540-day extension would
still, as estimated by DHS in the 2024 TFR, leave 260,000 EAD renewal
applicants unprotected, which would cause those applicants to lose
their drivers' and professional licenses and other critical benefits
and would significantly harm the workers, their families, their
communities, and the national economy at large. Further, the commenter
said that leaving hundreds of thousands of workers with lapses in work
authorization would leave them more susceptible to turning to the
informal labor market, where the already-vulnerable workers may face
poor working conditions, harassment, and exploit
[…truncated; see source link]Indexed from Federal Register on December 13, 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.