Proposed Rule2026-11285
Clarification of Discretionary Employment Authorization for Certain Aliens
Primary source
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Published
June 5, 2026
Issuing agencies
Homeland Security Department
Abstract
The Department of Homeland Security proposes to limit and clarify eligibility for discretionary employment authorization for aliens paroled into the United States temporarily for urgent humanitarian reasons or significant public benefit, who have been granted deferred action, or against whom a final order of removal exists and who are temporarily released from custody on an order of supervision. DHS further proposes to specify that aliens applying for employment authorization who admit to committing, have been arrested for, or have been convicted of certain criminal acts do not warrant a favorable exercise of discretion unless there are significant countervailing public interests, which may include assisting law enforcement activity in the United States.
Full Text
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<title>Federal Register, Volume 91 Issue 108 (Friday, June 5, 2026)</title>
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[Federal Register Volume 91, Number 108 (Friday, June 5, 2026)]
[Proposed Rules]
[Pages 34352-34478]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-11285]
[[Page 34351]]
Vol. 91
Friday,
No. 108
June 5, 2026
Part II
Department of Homeland Security
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8 CFR Parts 106, 241, and 274a
Clarification of Discretionary Employment Authorization for Certain
Aliens; Proposed Rule
Federal Register / Vol. 91 , No. 108 / Friday, June 5, 2026 /
Proposed Rules
[[Page 34352]]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 106, 241, and 274a
[CIS No. 2805-25; DHS Docket No. USCIS-2026-0067]
RIN 1615-AC98
Clarification of Discretionary Employment Authorization for
Certain Aliens
AGENCY: U.S. Citizenship and Immigration Services, DHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Homeland Security proposes to limit and
clarify eligibility for discretionary employment authorization for
aliens paroled into the United States temporarily for urgent
humanitarian reasons or significant public benefit, who have been
granted deferred action, or against whom a final order of removal
exists and who are temporarily released from custody on an order of
supervision. DHS further proposes to specify that aliens applying for
employment authorization who admit to committing, have been arrested
for, or have been convicted of certain criminal acts do not warrant a
favorable exercise of discretion unless there are significant
countervailing public interests, which may include assisting law
enforcement activity in the United States.
DATES: Submission of Public Comments: Written comments must be
submitted on or before August 4, 2026. Comments on the information
collection described in the ``Paperwork Reduction Act'' section of this
proposed rule must be received on or before August 4, 2026. The
electronic Federal Docket Management System will accept comments prior
to midnight eastern time at the end of that day.
ADDRESSES: You may submit comments on the entirety of this proposed
rulemaking package, identified by DHS Docket No. USCIS-2026-0067
through the Federal eRulemaking Portal: <a href="http://www.regulations.gov">http://www.regulations.gov</a>. In
accordance with 5 U.S.C. 553(b)(4), the summary of this rule found
above may also be found at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the
website instructions for submitting comments.
Comments must be submitted in English, or an English translation
must be provided. Comments that will provide the most assistance to
USCIS in implementing these changes will reference a specific portion
of the proposed rule, explain the reason for any recommended change,
and include data, information, or authority that support such
recommended change. Comments submitted in a manner other than the one
listed above, including emails or letters sent to DHS or USCIS
officials, will not be considered comments on the proposed rule and may
not receive a response from DHS. Please note that DHS and USCIS will
not accept any comments that are hand-delivered, couriered, or sent by
mail. In addition, USCIS cannot accept comments contained on any form
of digital media storage devices, such as CDs/DVDs and USB drives. If
you cannot submit your comment by using <a href="http://www.regulations.gov">http://www.regulations.gov</a>,
please contact the Regulatory Coordination Division, Office of Policy
and Strategy, U.S. Citizenship and Immigration Services, Department of
Homeland Security, by telephone at (240) 721-3000 for alternate
instructions.
FOR FURTHER INFORMATION CONTACT: Security and Public Safety Division,
Office of Policy and Strategy, U.S. Citizenship and Immigration
Services (USCIS), Department of Homeland Security, 5900 Capital Gateway
Drive, Camp Springs, MD 20746; telephone (240) 721-3000.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation
II. Executive Summary
A. Purpose of the Regulatory Action
B. Legal Authority
C. Summary of the Major Provisions of the Regulatory Action
D. Summary of Costs and Benefits
III. Background and Purpose
A. Prior and Related Rulemaking Efforts
1. Asylum EAD Reform
2. Biometrics Rule
B. Background
1. Detention, Release, and Repatriation of Aliens Ordered
Removed
2. Withholding of Removal Under the INA and Regulations
Implementing CAT and Deferral of Removal Under Regulations
Implementing CAT
3. Parole
4. Deferred Action
5. Employment Authorization
6. Biometric Submission
C. Purpose
1. Aliens With Final Orders of Removal
2. Aliens Who Have Received a Grant of Deferral of Removal Under
the Regulations Implementing CAT
3. Aliens Paroled Into the United States
4. Aliens Granted Deferred Action
IV. Discussion of Proposed Rule
A. Discretionary Employment Authorization Generally
1. Biometrics Submission and Criminal History
2. Filing Fees
3. E-Verify
4. Economic Necessity
B. Discretionary Employment Authorization for Aliens on OSUP
C. Aliens Granted Deferral of Removal Under the Regulations
Implementing CAT
D. Discretionary Employment Authorization for Aliens Paroled
Into the United States
E. Discretionary Employment Authorization for Aliens Granted
Deferred Action
F. Automatic Termination of Employment Authorization
G. Technical Edits and Edits for Clarity
H. Reliance Interests of Certain Aliens With Current Employment
Authorization
I. Description of Any Significant Alternatives to the Proposed
Rule Which Accomplish the Stated Objectives
J. Severability
V. Statutory and Regulatory Requirements
A. Executive Orders 12866 (Regulatory Planning and Review),
13563 (Improving Regulation and Regulatory Review), and 14192
(Unleashing Prosperity Through Deregulation)
1. Summary
2. Background and Purpose of the Proposed Rule
3. Population
4. Monetized Impact Analysis
5. Costs to Employers
6. Biometrics Costs to All Other Aliens Who Apply for Employment
Authorization
7. Potential Costs to the Federal Government
8. Benefits
9. Labor Market Overview
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. Family Assessment
H. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
I. National Environmental Policy Act
J. Paperwork Reduction Act
K. Executive Order 12630 (Governmental Actions and Interference
with Constitutionally Protected Property Rights)
Table of Abbreviations
AEDPA Anti-Terrorism and Effective Death Penalty Act
ASC Application Support Center
BIA Board of Immigration Appeals
BLS Bureau of Labor Statistics
CAP Center for American Progress
CAT Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment
CBP U.S. Customs and Border Protection
CEQ Council of Environmental Quality
CFR Code of Federal Regulations
CPI-U Consumer Price Index for All Urban Consumers
DACA Deferred Action for Childhood Arrivals
DHS U.S. Department of Homeland Security
DOJ U.S. Department of Justice
[[Page 34353]]
DOL U.S. Department of Labor
DOS U.S. Department of State
EAD Employment Authorization Document
E.O. Executive Order
EOIR Executive Office for Immigration Review
E-Verify Employment Eligibility Verification System
FARRA Foreign Affairs Reform and Restructuring Act of 1998
FBI Federal Bureau of Investigation
FR Federal Register
FY Fiscal Year
GSA General Services Administration
HR Human Resources
H.R. 1 The One Big Beautiful Bill Act, Public Law 119-21, 139 Stat.
72.
HSA Homeland Security Act of 2002
HHS U.S. Department of Health and Human Services
ICE U.S. Immigration and Customs Enforcement
IIRIRA Illegal Immigration Reform and Immigrant Responsibility Act
of 1996
IJ Immigration Judge
INA Immigration and Nationality Act
INS Immigration and Naturalization Service
IRFA Initial Regulatory Flexibility Analysis
IRS Internal Revenue Service
LPR Lawful Permanent Resident
MOU Memorandum of Understanding
NEPA National Environmental Policy Act
NGO Non-governmental Organization
NPRM Notice of Proposed Rulemaking
OI Operating Instructions
OMB Office of Management and Budget
OSUP Orders of supervision
PRA Paperwork Reduction Act
Pub. L. Public Law
RFA Regulatory Flexibility Analysis
RIA Regulatory Impact Analysis
SBREFA Small Business Regulatory Enforcement Fairness Act of 1996
Secretary Secretary of Homeland Security
SSA Social Security Administration
TPS Temporary Protected Status
UMRA Unfunded Mandates Reform Act of 1995
U.N. United Nations
U.S.C. United States Code
USCIS U.S. Citizenship and Immigration Services
I. Public Participation
The Department of Homeland Security (DHS) invites all interested
parties to participate in this rulemaking by submitting written data,
views, comments and arguments on all aspects of this proposed rule. DHS
also invites comments that relate to the economic, environmental, or
federalism effects that might result from this proposed rule. Comments
must be submitted in English, or an English translation must be
provided. Comments that will provide the most assistance to U.S.
Citizenship and Immigration Services (USCIS) in implementing these
changes will reference a specific portion of the proposed rule, explain
the reason for any recommended change, and include data, information,
or authority that support such recommended change. Comments submitted
in a manner other than the one listed above, including emails or
letters sent to DHS or USCIS officials, will not be considered comments
on the proposed rule and may not receive a response from DHS.
Instructions: If you submit a comment, you must include the agency
name (U.S. Citizenship and Immigration Services) and the DHS Docket No.
USCIS-2026-0067 for this rulemaking. Regardless of the method used for
submitting comments or material, all submissions will be posted,
without change, to the Federal eRulemaking Portal at <a href="http://www.regulations.gov">http://www.regulations.gov</a>, and will include any personal information you
provide. Therefore, submitting this information makes it public. You
may wish to consider limiting the amount of personal information that
you provide in any voluntary public comment submission you make to DHS.
DHS may withhold information provided in comments from public viewing
that it determines may impact the privacy of an individual or is
offensive. For additional information, please read the Privacy and
Security Notice available at <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
Docket: For access to the docket and to read background documents
or comments received, go to <a href="http://www.regulations.gov">http://www.regulations.gov</a>, referencing DHS
Docket No. USCIS-2026-0067. You may also sign up for email alerts on
the online docket to be notified when comments are posted or a final
rule is published.
II. Executive Summary
A. Purpose of the Regulatory Action
DHS proposes to limit and clarify eligibility for discretionary
employment authorization under 8 CFR 274a.12(c)(11)(``(c)(11)''), for
aliens paroled into the United States temporarily for urgent
humanitarian reasons or significant public benefit,\1\ and for
discretionary employment authorization under 8 CFR
274a.12(c)(14)(``(c)(14)''), for aliens granted deferred action.\2\ DHS
also proposes to eliminate, with one narrow exception, discretionary
employment authorization eligibility under 8 CFR
274a.12(c)(18)(``(c)(18)''), for aliens against whom a final order of
deportation or removal exists and who are temporarily released from
custody on an order of supervision.\3\ Additionally, DHS proposes to
add automatic termination conditions for employment authorization with
triggering events. The proposed rule will also require that aliens in
these categories establish their economic necessity for employment and
establish they warrant a favorable exercise of discretion. DHS is also
proposing to require aliens applying for renewal or subsequent requests
of employment authorization in these categories be employed by or
seeking employment with an employer who participates in E-Verify, the
electronic employment eligibility verification program administered by
USCIS. DHS also proposes to clarify that all aliens applying for
employment authorization under 8 CFR 274a.12(c) must submit biometrics,
that an alien's identity must be validated before issuing any
employment authorization, and that, generally, situations where aliens
have been arrested,\4\ indicted, or convicted of any criminal act, or
who have admitted to committing a violent or dangerous crime, or for
whom evidence exists that the alien is a member of a gang or terrorist
organization, do not warrant a favorable exercise of discretion, unless
there are significant countervailing public interests, which may
include the presence of the alien in the United States to assist law
enforcement activity in the United States.
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\1\ Currently, except as provided in 8 CFR 274a.12(b)(37) and
(c)(34) and 8 CFR 212.19(h)(4), an alien paroled into the United
States temporarily for urgent humanitarian reasons or significant
public benefit pursuant to section 212(d)(5) of the Act is eligible
for employment authorization under 8 CFR 274a.12(c)(11) ((c)(11)
category).
\2\ Currently, except as provided in 8 CFR 274a.12(c)(33), an
alien who has been granted deferred action, an act of administrative
convenience to the government that gives some cases lower priority,
is eligible for employment authorization under 8 CFR 274a.12(c)(14)
((c)(14) category) if the alien establishes an economic necessity
for employment.
\3\ Currently, an alien against whom a final order of
deportation or removal exists and who is released on an order of
supervision under the authority contained in section 241(a)(3) of
the Act, and who meets other eligibility criteria may be granted
employment authorization under 8 CFR 274a.12(c)(18) ((c)(18)
category).
\4\ In this proposed rule, this means arrested or charged
regardless of the disposition.
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Additionally, DHS is clarifying that aliens granted deferral of
removal based on regulations implementing the United States'
obligations under Article 3 of the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (CAT) are eligible
to apply for discretionary employment authorization in accordance with
8 CFR 274a.12(c)(18). Employment authorization will not be automatic
upon the grant of deferral of removal under CAT. Such aliens may apply
for employment authorization, but USCIS retains the authority and
discretion to determine their eligibility under 8 CFR
[[Page 34354]]
274a.12(c)(18) if the alien warrants a favorable exercise of
discretion.
These proposed changes and clarifications are responsive to
Executive Order (E.O.) 14159, ``Protecting the American People Against
Invasion'' \5\ to ensure the continued safety and security of the
American people and the integrity of our immigration system. DHS seeks
to ensure that any discretionary grant of employment authorization to
aliens is consistent with DHS's obligations under the INA to apprehend,
detain, and promptly remove from the United States any criminal aliens,
aliens who are a threat to national security or public safety, and
aliens who are inadmissible or deportable or otherwise ineligible for
relief under the INA. DHS also seeks to ensure that its rules are
aligned with the Administration's efforts to reduce illegal immigration
and the incentives for aliens to try to obtain immigration benefits
outside of the comprehensive scheme Congress has provided for aliens to
legally immigrate to the United States. Enforcement is essential to the
integrity of the immigration system. It protects U.S. national security
and ensures that only those who are legally qualified and lawfully in
the United States are allowed to avail themselves of any benefits
privileges under the INA.
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\5\ 90 FR 8443 (Jan. 29, 2025).
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Employment authorization issued under the (c)(18) category is for
aliens temporarily released from U.S. Immigration and Customs
Enforcement (ICE) custody on orders of supervision (OSUP), which allow
aliens to remain in the United States while awaiting deportation or
removal when they cannot be removed due to the refusal of all countries
designated by the alien or under section 241 of the Act, 8 U.S.C. 1231,
to receive the alien, or because the removal of the alien is otherwise
impracticable or contrary to the public interest. When adjudicating
employment authorization applications under 8 CFR 274a.12(c)(18), USCIS
has historically granted the benefit to any alien with a final order of
removal released on an order of supervision without conducting an
individualized assessment of whether the alien cannot be removed due to
the refusal of all countries designated by the alien or under section
241 of the Act to receive the alien or because removal is impracticable
or contrary to the public interest. Granting employment authorization
solely because the alien was released from ICE custody on an order of
supervision after an order of removal without conducting an
individualized assessment undermines the integrity of the immigration
system as it can incentivize aliens to remain in the United States
rather than complying with their removal orders, cooperating with ICE
in swiftly obtaining travel documents, and departing the United States.
Furthermore, by eliminating, with one limited exception,
discretionary employment authorization for an alien who has been
arrested for, charged with, indicted for, or convicted of any criminal
act, or who admits to committing a violent or dangerous crime, DHS
hopes to deter the commission of crime and disincentivize such
dangerous aliens from remaining in the United States. DHS anticipates
this will be especially effective for aliens who intend to reapply for
employment authorization. These aliens would not warrant a favorable
exercise of discretion for employment authorization unless DHS has
determined there are significant countervailing public interests, which
may include assisting law enforcement activity in the United States.
The rule clarifies the requirements for discretionary grants of
employment authorization under (c)(11) for aliens paroled into the
United States temporarily for urgent humanitarian reasons or
significant public benefit, under (c)(14) for those who have been
granted deferred action, or under (c)(18) for those against whom a
final order of deportation or removal exists and who are temporarily
released from custody on an order of supervision. The rule will require
these aliens to establish they warrant a favorable exercise of
discretion. The rule also requires that aliens under these three
categories establish economic necessity. In doing so, DHS promotes a
consistent policy in contrast to the status quo, which currently only
requires aliens who have received a grant of deferred action ((c)(14))
or those with final orders of removal ((c)(18)) to establish economic
necessity for employment authorization. This proposed change will also
ensure that only aliens with an economic need to work will be eligible
for discretionary employment authorization in these categories, as well
as minimize the potential risk of disadvantaging American workers.
Aliens who do not have an economic need for employment will not be
eligible for employment authorization and an employment authorization
document (EAD) in these categories. Where DHS previously did not
require all aliens under these categories to establish economic
necessity, it will now consistently require them to do so. DHS will
provide guidance on the documentation that may be used to establish
such necessity in form instructions and other sub-regulatory guidance.
In addition to all the factors discussed at length above, this
Administration and DHS recognize the importance of American workers as
well. DHS intends for this rule to significantly restrict employment
authorization that might incentivize aliens to remain in the United
States after receiving a final order of removal and to strengthen
protection for American workers.
Statutory provisions governing certain employment-based visas, such
as H-2B temporary nonagricultural workers, mandate that such alien
workers not displace qualified, available American workers who are
capable of performing such services or labor, and similarly that such
alien employment not adversely affect the wages and working conditions
of workers in the United States.\6\ DHS is in no way equating the
populations of aliens discussed in this proposed regulation with
temporary nonagricultural workers; rather, DHS merely notes the
mandatory consideration for American workers in certain visa programs.
However, DHS recognizes there is historical precedent to consider
American workers when DHS determines the availability and scope of
employment authorization for aliens.
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\6\ See, e.g., INA sec. 101(a)(15)(H)(ii)(b), 8 U.S.C.
1101(a)(15)(H)(ii)(b); see also 8 CFR 214.2(h)(6)(i).
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For example, in 1974, the former Immigration and Naturalization
Service (INS) Commissioner Leonard F. Chapman, Jr. announced a
significant change to the summer program policy for foreign
students.\7\ Under the new policy, foreign students seeking summer
employment had to apply and obtain permission from INS. In changing the
long-standing student employment policy, INS recognized the foreign
policy benefits for young aliens studying in the United States but
determined that the protection of job opportunities for Americans
should be the ultimate consideration.\8\ The following year, INS
General Counsel Sam Bernsen gave a presentation further detailing INS'
decision. He recognized that F-1 student work was not expressly banned
by statute but was concerned about ensuring that ``a United States
citizen or a United States lawful permanent resident will not be fired
from a campus job to provide employment for a nonimmigrant
[[Page 34355]]
student.'' \9\ Continuing, Bernsen stated the ``INS had to weigh the
adverse effect on foreign relations against the adverse effect on the
labor market.'' \10\ This ultimately meant students who wanted
employment had to apply to the INS and establish eligibility under the
prescribed rules. The Government Accountability Office (GAO) in a 1983
report estimated that there were approximately 154,580 F-1 students in
1974.\11\ If all 154,580 F-1 students displaced American workers, it
still falls far short of the current displacement risk based on more
recent employment authorization applications. In FY 2024, USCIS
received 33,024 (c)(18) Order of Supervision EAD initial and renewal
applications; 792,130 (c)(11) Parole EAD initial and renewal
applications; and 153,154 (c)(14) Deferred Action EAD initial and
renewal applications, for a total of 978,308 discretionary EAD
applications in the categories impacted by this proposed rule.\12\ If
the former INS was justified in terminating a form of work
authorization in order to prevent the possible displacement of more
than 150,000 American workers on an annual basis, it follows that DHS
cannot discount the potential impact on up to 978,308 American workers
annually when reviewing discretionary EAD categories.
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\7\ See American Council for Nationalities Service Interpreter
Releases, Vol. 51, No. 16 ``Foreign Student Work Policy Changed''
(May 14, 1974).
\8\ Id.
\9\ See Bernsen, Sam, General Counsel, INS, DOJ, ``Leave to
Labor'' as published in American Counsel for Nationalities Service
Interpreter Releases, Vol. 52, No 35 (Sept. 2, 1975).
\10\ Id.
\11\ See GAO, Controls Over Foreign Students in U.S.
Postsecondary Institutions Are Still Ineffective, <a href="https://www.gao.gov/products/hrd-83-27">https://www.gao.gov/products/hrd-83-27</a> (Mar. 10, 1983). Department of State
(DOS) data on F-1 student visa issuances only goes back to 1987. See
<a href="https://travel.state.gov/content/dam/visas/Statistics/Non-Immigrant-Statistics/NIVClassIssuedDetailed/NIVClassIssued-DetailedFY1987-1991.pdf">https://travel.state.gov/content/dam/visas/Statistics/Non-Immigrant-Statistics/NIVClassIssuedDetailed/NIVClassIssued-DetailedFY1987-1991.pdf</a>. Accordingly, official data for 1974 F-1 visa admissions is
not available from DOS.
\12\ For more information, please see Tables V.4, V.11, and
V.16.
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Additionally, E.O. 14159 specifically provides that:
Enforcing our Nation's immigration laws is critically important
to the national security and public safety of the United States. The
American people deserve a Federal Government that puts their
interests first and a Federal Government that understands its sacred
obligation to prioritize the safety, security, and financial and
economic well-being of Americans.\13\
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\13\ See E.O. 14159, Protecting the American People Against
Invasion, 90 FR 8443 (Jan. 29, 2025).
This rule will also require the following groups of aliens who are
seeking a renewal of employment authorization be employed by, or
seeking employment with, a U.S. employer who is a participant in good
standing in the E-Verify program: aliens who were (1) paroled into the
United States temporarily for urgent humanitarian reasons or
significant public benefit applying under (c)(11); (2) who have been
granted deferred action applying under (c)(14); or (3) against whom a
final order of deportation or removal exists and who are temporarily
released from custody on an order of supervision applying under
(c)(18). This requirement will protect American workers against
potential displacement and any disadvantages in the labor market and
ensure that U.S. employers who hire these aliens are complying with our
immigration laws and not employing unauthorized workers.
Finally, this rule is consistent with the Administration's broad
objective to protect and strengthen protections for American workers.
Generally, by limiting employment authorization to those aliens who
establish an economic necessity for employment and warrant a favorable
exercise of discretion by USCIS, this rule will remove barriers and
open pathways for American workers to participate in positions that may
otherwise be filled by aliens. Further, the rule limits incentives to
remain in the United States for those aliens with final orders of
removal, thereby expanding the labor pool for American workers.
Overall, this rule represents one piece of a broader initiative \14\
within the federal government to fulfill the President's domestic
policy goal of developing American workers for jobs of the future and a
revitalized economy. DHS proposes to apply changes made by this rule
only to initial and renewal employment authorization applications filed
on or after the effective date of the final rule.
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\14\ For example, as noted elsewhere in this rule, USCIS is
engaged in concurrent rulemaking on other employment authorization
in the asylum context.
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B. Legal Authority
The Secretary of Homeland Security's (Secretary) authority for the
regulatory amendments made in this proposed rule is found in various
provisions of the Immigration and Nationality Act (INA), 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 proposed 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 naturalization laws and establish such
regulations as the Secretary deems necessary for carrying out such
authority, as well as section 122 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.\15\ This includes the authority to
issue regulations authorizing categories of aliens to be employed in
the United States and to collect from or require the submission of
biometrics by aliens requesting immigration benefits, such as
employment authorization. Additional authority for this proposed rule
is found in:
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\15\ Although several provisions of the INA discussed in this
proposed rule refer exclusively to the ``Attorney General,'' such
provisions are now to be read as referring to the Secretary by
operation of the HSA. See 6 U.S.C. 202(3), 251, 271(b), 542 note,
and 557; 8 U.S.C. 1103(a)(1) and (g), 1551 note; Nielsen v. Preap,
586 U.S. 392, 397 n.2 (2019).
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<bullet> Section 208, 8 U.S.C. 1158, which governs the
consideration of asylum applications and allows, inter alia, discretion
to grant asylum applicants employment authorization under specified
conditions.
<bullet> Section 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A), which
authorizes the Secretary to prescribe conditions on parole.
<bullet> Section 241 of the INA, 8 U.S.C. 1231, which governs the
detention, release, employment authorization, and removal of aliens
after they have received an administratively final order of removal;
<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 aliens in the United States; \16\
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\16\ Courts have acknowledged that Congress delegated authority
to DHS to grant or extend employment authorization to certain
classes of aliens. See, e.g., Wash. All. of Tech. Workers v. DHS, 50
F.4th 164, 191-92 (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,
212(d)(5)(A), 241, and 274A(h)(3) of the INA, 8 U.S.C. 1103, 1158,
1182(d)(5)(A), 1231, and 1324a(h)(3), as well as the Administrative
Procedure Act at 5 U.S.C. 553. See Loper Bright Enters. v. Raimondo,
603 U.S. 369, 395 (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.' '') (citations
omitted).
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<bullet> Sections 401-405 of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA), Public Law 104-208, 110
Stat. 3009-
[[Page 34356]]
546, which established the authority for the creation and operation of
E-Verify;
<bullet> Section 101(b)(1)(F) of the HSA, 6 U.S.C. 111(b)(1)(F),
which establishes as a primary mission of DHS the duty to ``ensure that
the overall economic security of the United States is not diminished by
efforts, activities, and programs aimed at securing the homeland'';
<bullet> Section 451(a)(3) of the HSA, 6 U.S.C. 271(a)(3), which
confers authority on the USCIS Director to establish ``policies for
performing [immigration adjudication] functions'';
<bullet> Section 103 of the INA, 8 U.S.C. 1103; section 287(b) of
the INA, 8 U.S.C. 1357(b); and sections 103.2(b)(9) and 103.16 of
chapter 8 of the CFR, which provides for and governs the collection,
submission, and use of biometrics by DHS; and
<bullet> The One Big Beautiful Bill Act (H.R. 1), Public Law 119-
21, 139 Stat. 72 (codified in relevant part at 8 U.S.C. 1801-1815),
which imposes restrictions on validity periods of employment
authorization in relation to certain immigration benefits, as well as
certain fees.
C. Summary of the Major Provisions of the Regulatory Action
DHS is proposing to amend its regulations governing discretionary
employment authorization for certain aliens. The proposed rule would
include the following provisions to clarify and limit when certain
aliens are eligible for discretionary employment authorization and how
USCIS will weigh certain discretionary factors when adjudicating a
discretionary grant of employment authorization:
<bullet> Employment Authorization for Aliens Granted Deferred
Action or Paroled into the United States. DHS proposes to revise
eligibility for discretionary employment authorization under 8 CFR
274a.12(c)(11) for aliens who have been paroled into the United States
based on urgent humanitarian reasons or significant public benefit and
under 8 CFR 274a.12(c)(14) for aliens who have been granted deferred
action by confirming such a grant requires the alien establish they
warrant a favorable exercise of discretion, by requiring aliens
applying for renewal of employment authorization be employed by or
seeking employment with a U.S. employer in good standing in E-Verify,
and by requiring aliens who have been paroled into the United States
based on urgent humanitarian reasons or significant public benefit to
establish an economic necessity for employment. The specific changes
proposed to 8 CFR 274a.12(c)(14) do not apply to employment
authorization based on a grant of DACA, which is authorized under 8 CFR
274a.12(c)(33), or to employment authorization based on a grant of
deferred action to an applicant for T nonimmigrant status, and eligible
family members, who have pending, bona fide applications, and who
warrant a favorable exercise of discretion, authorized under 8 CFR
274a.12(c)(40), and not 8 CFR 274a.12(c)(14); however, the proposed
changes described below relating to criminal aliens and biometrics,
which are generally applicable to all discretionary employment
authorization under 8 CFR 274a.12(c) unless specifically exempted, do
apply to employment authorization based on a grant of DACA or a bona
fide T application.
<bullet> Employment Authorization for Aliens Temporarily Released
on OSUP. DHS proposes to limit eligibility for discretionary employment
authorization under 8 CFR 274a.12(c)(18) for aliens who have final
orders of removal and are temporarily released from custody on OSUP to
aliens for whom DHS has determined that removal is impracticable
because all countries from which DHS requested travel documents have
failed to issue such documents. DHS also proposes to require aliens
applying for renewal of employment authorization in this category to be
employed by or seeking employment with a U.S. employer in good standing
in E-Verify.
<bullet> Bar discretionary employment authorization for criminal
aliens. DHS proposes that unless DHS has determined that there are
significant countervailing public interests, which may include the
presence of the alien in the United States to assist law enforcement
activity in the United States, it generally will not favorably exercise
its discretion to grant employment authorization, when:
[cir] An alien has been arrested for, charged with (without
disposition), indicted for, or convicted of, any criminal act; or
[cir] An alien admits to committing a violent or dangerous crime,
even if the alien has never been formally arrested, charged, indicted
or convicted; or
[cir] There is evidence of the alien's membership in a gang or
terrorist organization.
While an alien's successful participation in state or federal
programs, such as pretrial diversion programs, may not constitute a
conviction for the purposes of the INA, DHS generally will not
favorably exercise its discretion to grant employment authorization for
aliens who enter into agreements that impose some form of punishment,
penalty, or a restraint on liberty. This includes agreements or
programs where an alien's criminal record has been sealed or expunged.
In these cases, the alien's initial criminal arrest would be the
prevailing factor.
<bullet> Require biometrics submission. DHS proposes to require
aliens seeking discretionary employment authorization to submit
biometrics. USCIS will submit an alien's biometrics to the Federal
Bureau of Investigation (FBI) for a criminal history check and use an
alien's biometrics to facilitate identity verification and production
of the EAD.
<bullet> Validity periods. DHS intends to shorten the validity
period of the discretionary EADs (e.g., not more than one year)
impacted by the proposed rule and place the burden on the alien to
ensure ongoing eligibility for those applying for EADs under these
categories. On July 4, 2025, the President signed into law the One Big
Beautiful Bill Act (H.R. 1), Public Law 119-21, 139 Stat. 72. It placed
a limit on the validity of employment authorization for any alien
paroled into the United States to one year or the duration of the
alien's parole, whichever is shorter.\17\ H.R.1 also established
statutory validity periods for Temporary Protected Status (TPS)-based
employment authorization, stating TPS-related employment authorization
may only be automatically extended for up to 1 year or the duration of
TPS, whichever is shorter, for initial and renewal applications for
employment authorization pending or filed on or after July 22,
2025.\18\ Considering these changes, DHS is updating the validity
period for EADs issued for deferred action and OSUP-based employment
authorization categories to align with the others imposed in H.R. 1. In
addition to ensuring continuous eligibility and consistent treatment,
this
[[Page 34357]]
shorter validity period also supports ongoing management of aliens on
OSUP to ensure aliens are complying with the terms and conditions of
OSUP and have not reoffended or absconded. The burden should be on the
alien to reappear for biometrics submission with each application for
employment authorization to ensure USCIS has the most up-to-date and
accurate background check information. At their discretion, DHS and
USCIS may shorten additional discretionary EAD validity periods by
issuing sub-regulatory guidance in the future.
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\17\ See Section 100003(b)(1) of Part I, Title X of Public Law
119-21 (July 4, 2025), 8 U.S.C. 1803(b)(1) (defining the validity
period for initial employment authorization of parolees to a period
of 1 year or for the duration of the alien's parole, whichever is
shorter.); see also Section 100010(a) of Part I, Title X of Public
Law 119-21 (July 4, 2025), 8 U.S.C. 1809(a) (defining the validity
period for renewal employment authorization of parolees to a period
of 1 year or for the duration of the alien's parole, whichever is
shorter).
\18\ See Section 100003(c)(1) of Part I, Title X of Public Law
119-21 (July 4, 2025), 8 U.S.C. 1803(c)(1) (defining the validity
period for initial employment authorization of aliens granted TPS to
a period of 1 year or for the duration of the TPS designation,
whichever is shorter.); see also Section 100012(a) of Part I, Title
X of Public Law 119-21 (July 4, 2025), 8 U.S.C. 1811(a) (defining
the validity period for renewal employment authorization of those
granted TPS to a period of 1 year or for the duration of the TPS
designation, whichever is shorter).
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<bullet> Automatic Termination of Employment Authorization. DHS is
proposing to expand the reasons for automatic termination under 8 CFR
274a.14(a)(1), to include two additional reasons:
[cir] When an alien has an administratively final order of removal
under any of the removal statutes (e.g., INA 217, 235, 238, 240); and
[cir] When the underlying basis for employment authorization is
terminated or denied. This can include DHS's termination of status or
denial of the application that was the basis of the employment
authorization (e.g., parole, deferred action).
Notice of the termination of the underlying status or benefit,
denial of a pending application, or having a final order of removal
will result in the automatic termination of any alien's employment
authorization granted under Sec. 274a.12(c).
D. Summary of Costs and Benefits
DHS estimates that this proposed rule would result in a reduction
in the number of aliens with granted deferred action, aliens granted
parole, and aliens with final orders of removal who are eligible for
employment authorization. This could result in lost earnings for aliens
who are no longer eligible for employment authorization, while also
ensuring and strengthening protections of American workers. The lost
earnings could result in a transfer of costs from the alien to their
support network, including family members, community groups, non-
profits or third-party organizations that provide for the alien, and
any dependents. In addition, DHS estimates that the proposed rule would
increase filing burdens for those aliens who remain eligible for
employment authorization, while ensuring economic necessity for
employment and permitting DHS to verify criminal history and
biometrically verify an alien's identity before issuing employment
authorization, and demonstrating to the satisfaction of USCIS that the
alien warrants a favorable exercise of discretion. U.S. businesses that
currently employ alien workers who would no longer be eligible to renew
their employment authorization under this proposed rule could incur new
costs due to employee turnover or compliance with the proposed E-Verify
requirement that would ensure aliens' authorization to work. Finally,
the proposed rule may result in a loss of tax revenue.
Under the proposed rule, DHS estimates and quantifies six types of
economic impacts, including: (1) potential lost earnings of alien
workers who may no longer be eligible for employment authorization; (2)
increased time burden for aliens to submit forms; (3) added time and
costs for aliens to submit biometrics; \19\ (4) labor turnover costs
that employers of alien workers could incur when EADs expire, are
revoked, or are not renewed; (5) costs to employers to enroll in and
maintain an E-Verify account as a participant in good standing to
retain alien workers applying for renewal EADs; and (6) potential
employment tax losses to the Federal government.
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\19\ As discussed later in this preamble, the proposed changes
under 8 CFR 274a.13(a) will require all aliens applying for
employment authorization under Sec. 274a.12(c) to submit biometrics
at an ASC. DHS is concurrently proposing to amend its regulations
concerning the submissions and use of biometrics by an NPRM. The
overlapping policy objectives between the biometrics rule and this
proposed rule were considered when developing the populations and
costs associated with submitting biometrics under this proposed
rule. As such, this rule will only consider the impacts of
biometrics submission for those aliens that apply for employment
authorization under Sec. 274a.12(c).
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DHS estimates that some aliens would be ineligible for
discretionary EADs due to the proposed rule. However, DHS cannot
estimate this population with precision because of data constraints
and, therefore, relies on a range with an upper and lower bound. The
estimated 10-year undiscounted, direct costs of this proposed rule
would range from about $9.1 billion to $27.9 billion (Table V.36),
which includes costs associated with biometrics and added time burdens
for relevant filing forms as well as estimated costs should employers
not be able to find replacement labor for category (c)(11), (c)(14),
and (c)(18) aliens who would become ineligible for employment
authorization under this rule. The estimated 10-year costs of the
proposed rule annualized at a 3 percent discount rate would range from
$920.5 million to $2.8 billion, and at a 7 percent discount rate would
range from $937.1 million to $2.9 billion. DHS estimates $2.9 billion
(10-year undiscounted) as the maximum transfer of employment taxes
(namely Medicare and Social Security) from employers and employees to
the Federal Government ($298.2 million annualized at 3 percent and
$304.6 million annualized at 7 percent).
The potential benefits of the proposed rule would be qualitative.
First, U.S. citizen or lawful permanent resident workers on the whole
would be more likely to obtain jobs currently held by category (c)(11),
(c)(14), and (c)(18) alien workers since the proposed rule would reduce
employment authorization eligibility for these populations of aliens.
Second, the proposed rule may reduce the incentive for (c)(18) aliens
to remain in the United States after receiving a final order of
removal, which could reduce the amount of government resources expended
on enforcing final orders of removal for such aliens as well as
monitoring and tracking aliens temporarily released on OSUP. According
to a May 2025 DHS announcement,\20\ the average cost to arrest, detain,
and remove an illegal alien is $17,121.\21\
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\20\ ``DHS Announces Historic Travel Assistance and Stipend for
Voluntary Self-Deportation'' (release date May 5, 2025), <a href="https://www.dhs.gov/news/2025/05/05/dhs-announces-historic-travel-assistance-and-stipend-voluntary-self-deportation">https://www.dhs.gov/news/2025/05/05/dhs-announces-historic-travel-assistance-and-stipend-voluntary-self-deportation</a>, (last viewed Nov.
26, 2025).
\21\ It is important to note that costs can vary significantly
based on individual circumstances, such as the method of removal,
the alien's location, detention costs, transportation expenses,
legal proceedings, and other logistical considerations.
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Additional unquantifiable benefits also include enabling DHS to
determine an economic necessity for employment, biometrically verifying
an alien's identity before issuing any employment authorization under
Sec. 274a.12(c), vetting an alien's biometrics against government
databases for criminal activity, and ensuring that aliens who renew
their employment authorization have their employment authorization
verified by their employer, thereby increasing the integrity of the
immigration system.
Table II.1 shows the summary of impacts of the proposed regulatory
changes and the associated estimated costs and benefits.\22\
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\22\ For a complete summary of regulatory changes and additional
guidance in this proposed rule, please see Section IV, ``Discussion
of Proposed Rule.''
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The impacts \23\ of reducing the number of aliens with final orders
of removal, aliens granted deferred action, and aliens granted parole
who are eligible for employment authorization include both potential
distributional impacts (transfers) and costs. USCIS uses the lost
compensation to aliens who are no longer eligible for employment
authorization as a measure of the impact of this change--either as
distributional impacts (transfers) from these aliens to others or as a
proxy for businesses' cost for lost productivity. If all companies can
easily find reasonable labor substitutes for the positions the aliens
would have otherwise filled, DHS estimates a maximum of $2.8 billion
(annualized at a 3 percent discount rate) would be transferred from
these workers to others in the labor force (or induced back into the
labor force) or $2.9 billion (annualized at a 7 percent discount rate)
(Table II.2(A)).\24\ Under this scenario, there would be no Federal
employment tax losses.\25\ Conversely, if companies are unable to find
reasonable labor substitutes for the positions the aliens would have
filled, then a maximum of $2.8 billion (annualized at a 3 percent
discount rate) or $2.9 billion (annualized at a 7 percent discount
rate) is the estimated monetized cost in lost productivity, and $0 is
the estimated monetized transfers from these aliens to other workers.
In addition, under this scenario where jobs would go unfilled, there
would be a loss of employment taxes to the Federal Government. USCIS
estimates $298.2 million (annualized at a 3 percent discount rate) or
$304.6 million (annualized at a 7 percent discount rate) as the maximum
reduction in transfers of employment taxes from companies and employees
to the Federal Government.
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\23\ All other categories include: (c)(1)-(10), (c)(12),
(c)(16), (c)(17), (c)(19)-(22), (c)(24)-(26), (c)(33)-(36), and
(c)(40).
\24\ We note that DHS does not know the portion of overall
impacts of this rule that are transfers or costs and assume that if
companies can find replacement labor for the positions the (c)(11),
(c)(14), or (c)(18) alien worker would have filled, removing
employment authorization from these aliens would result in primarily
distributional effects in the form of transfers from aliens to
others that are currently in the U.S. labor force (or workers
induced to return to the labor market). Please see Section V.A.5.
``Costs to Employers'' for more information.
\25\ This scenario assumes that all the labor substitutes for
the positions the aliens would have filled were previously
unemployed. If a labor substitute was previously employed, then
there could be a potential tax loss stemming from the position that
was vacated.
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DHS believes the two scenarios described above represent the
uncertainty in how employers will be able to respond given labor market
conditions. DHS estimated endpoints for the range of monetized impacts
resulting from the provisions that affect employment eligibility for
aliens with final orders of removal, aliens granted deferred action,
and aliens granted parole. Effects of this rulemaking would depend in
part on the interaction of a
[[Page 34365]]
number of complex variables that are constantly in flux, including
national, state, and local labor market conditions, economic and
business factors, the type of occupations and skills involved, and the
availability of similarly skilled workers. DHS acknowledges there is
extensive literature on the impacts of immigration on labor
markets.\26\ DHS welcomes public comment on the estimates presented in
these scenarios and on the validity of the assumptions on affected jobs
being backfilled.
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\26\ See Edo, A. (2019). The Impact of Immigration on the Labor
Market. Journal of Economic Surveys, Vol. 33(3), pp. 922-948.
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There are other costs of the rule, including E-Verify, biometrics,
labor turnover, and additional form burdens. These other costs exist
under both scenarios described above, and thus $4.2 million is the
minimum cost of the rule (annualized at a 3 percent discount rate) or
$4.4 million (annualized at a 7 percent discount rate).
The range of impacts described by the scenarios above, plus the
consideration of the other costs, are summarized in Table II.2. The
primary estimate shown in Table II.2 is the median point between the
minimum estimate and the maximum estimate for each scenario.\27\
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\27\ Example calculations at 7 percent: The median for
compensation (transfer) of $0 and $2,877,152,531 = $1,443,576,266.
The median for taxes (transfer) of $0 and $304,644,371 =
$152,322,185. The median for biometrics (cost) of $3,440,598 and
$8,425,002 = $5,932,800. The median for forms (cost) of $934,778 and
$2,622,217 = $1,778,497. The median for lost productivity (cost) of
$0 and $2,887,152,531 = $1,443,576,266. The median for total costs
of $4,375,376 and $2,898,199,750 = $1,451,287,563.
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In addition, Table II.3 presents the prepared accounting statement,
as required by OMB Circular A-4, showing the costs associated with this
proposed regulation.\28\ Note that under costs, the primary estimates
provided in the accounting statement are the calculated midpoint based
on the minimum cost from the scenario that all aliens are replaced with
other workers and the maximum cost from the scenario that no aliens are
replaced with other workers (scenarios presented in Tables II.2(A) and
(B)).
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\28\ OMB, ``Circular A-4'' (Sept. 17, 2003).
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BILLING CODE 9111-97-C
III. Background and Purpose
A. Prior and Related Rulemaking Efforts
On November 19, 2020, DHS published a notice of proposed rulemaking
(NPRM) in the Federal Register, Employment Authorization for Certain
Classes of Aliens with Final Orders of Removal (OSUP NPRM). 85 FR
74196. It proposed to eliminate eligibility for discretionary
employment authorization for aliens who have final orders of removal
and are temporarily released from custody on an order of supervision
with one narrow exception. In general, the basis for the OSUP NPRM
stemmed from two executive orders issued by President Trump, E.O. 13768
(Enhancing Public Safety in the Interior of the United States) and E.O.
13788 (Buy American and Hire American).\29\
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\29\ E.O. 13768, Enhancing Public Safety in the Interior of the
United States, 82 FR 8799 (Jan. 30, 2017); E.O. 13788, Buy American
and Hire American, 82 FR 18837 (Apr. 21, 2017).
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USCIS provided a 30-day comment period to receive public comments
on the proposed rule, which ended December 21, 2020. DHS received a
total of 306 comments on the OSUP NPRM.
On January 20, 2021, President Biden issued E.O. 13993 (Revision of
Civil Immigration Enforcement Policies and Priorities), which revoked
E.O. 13768.\30\ Then, on January 25, 2021, President Biden issued E.O.
14005 (Ensuring the Future Is Made in All of America by All of
America's Workers), which revoked E.O. 13788.\31\ E.O.s 13993 and 14005
directed agencies to review, revise, or rescind any agency actions or
guidance inconsistent with the executive orders.
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\30\ E.O. 13993, Revision of Civil Immigration Enforcement
Policies and Priorities, 86 FR 7051 (Jan. 25, 2021).
\31\ E.O. 14005, Ensuring the Future Is Made in All of America
by All of America's Workers, 86 FR 7475 (Jan. 28, 2021).
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After reviewing the OSUP NPRM and the public comments in light of
E.O.s 13993 and 14005, DHS withdrew the OSUP NPRM on May 10, 2021.
Employment Authorization for Certain Classes of Aliens with Final
Orders of Removal; Withdrawal, 86 FR 24751. Therefore, an OSUP final
rule was never published. Many of the proposed provisions in this rule
closely follow
[[Page 34370]]
what was originally proposed in the OSUP NPRM. However, as no final
rule was published, DHS will address the previously proposed provisions
anew.
Concurrent with this rule, DHS is engaging in multiple rulemaking
actions that are in various stages of development. DHS has considered
and analyzed each of these other rules for peripheral, overlapping, or
interrelated effects on this rule and has incorporated their effects,
if any, into the supporting documentation, policies, and regulatory
text for this proposed rule.
1. Asylum EAD Reform
DHS recently published a proposed rule (``Asylum EAD Reform Rule'')
addressing employment authorization for aliens with pending
applications for asylum under 8 CFR 274a.12(c)(8) and 8 CFR 208.7
(colloquially referred to as a ``(c)(8) EAD'').
In the proposed Asylum EAD Reform rule, 91 FR 8616, DHS seeks to
amend 8 CFR 274a.13(a)(1) so that USCIS would have discretion to grant
applications for employment authorization filed by aliens applying for
asylum pursuant to 8 CFR 274a.12(c)(8) in keeping with its
discretionary statutory authority under section 208(d)(2) of the INA, 8
U.S.C. 1158(d)(2). As asylum is a discretionary benefit, it follows
that USCIS should similarly grant work authorization associated with a
pending asylum application as a matter of discretion. DHS cannot
continue to provide employment authorization to asylum applicants with
virtually no eligibility criteria and nearly limitless renewal
opportunities to a population of aliens where many of the claims for
relief are ultimately unsuccessful. In fiscal years 2023, 2024, and
2025 (year to date), in roughly 18,000 of the approximately 33,500
asylum cases completed by USCIS, over 50% resulted in a denial or
referral to Immigration Court.\32\ Judges in the Department of Justice,
Executive Office for Immigration Review's (EOIR) immigration courts
similarly granted about 50% of the asylum applications adjudicated on
the merits in fiscal years 2023 and 2024 and only about 25% in fiscal
year 2025 (through the third quarter).\33\
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\32\ See, e.g., Office of Homeland Security Statistics, DHS,
``Asylees: 2023'' (Oct. 2024), <a href="https://ohss.dhs.gov/sites/default/files/2024-10/2024_1002_ohss_asylees_fy2023.pdf">https://ohss.dhs.gov/sites/default/files/2024-10/2024_1002_ohss_asylees_fy2023.pdf</a>. Note: This figure
does not include cases associated with the Operation Allies Welcome
(OAW) program. This program, established by the previous
administration, resulted in disproportionately high grant rates for
OAW cases. These cases were excluded to give a more accurate
overview of the previous years' figures, as the OAW cases' priority
and volume would have impacted the average if they had been
included.
\33\ See EOIR, Asylum Decisions (July 31, 2025) (comparing
asylum grants versus the total of asylum grants and denials),
<a href="https://www.justice.gov/eoir/media/1344851/dl?inline">https://www.justice.gov/eoir/media/1344851/dl?inline</a>.
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The purpose of the proposed Asylum EAD Reform Rule is to reform,
improve, and streamline the asylum EAD process, so that those with bona
fide asylum claims can be prioritized and extended protection. Thus,
that proposed rule would impact the process for issuance of EADs for
aliens with a pending asylum application under 8 CFR 274a.12(c)(8), the
processing timeframe for (c)(8) EAD applications, the waiting period to
apply for a (c)(8) EAD, the time in which a (c)(8) EAD is adjudicated,
(c)(8) EAD validity period, and eligibility requirements for (c)(8)
EADs. The Asylum EAD Reform Rule would require changes to existing
regulatory text and the creation of new regulatory text.
DHS considered the possible combined effects of the Asylum EAD
Reform Rule and this proposed rule. Both this rule and the Asylum EAD
Reform Rule emphasize the discretionary nature of employment
authorization for the pertinent populations and the proposed
discretionary factors and clarified eligibility requirements included
in this rule and the Asylum EAD Reform Rule generally overlap. For
example, both the Discretionary EAD Rule and Asylum EAD Reform Rule
propose to exclude certain criminal aliens from employment
authorization eligibility. In the Asylum EAD Reform Rule, DHS is
proposing to exclude (c)(8) EAD eligibility for any alien who has been
convicted of an aggravated felony as described in section 101(a)(43) of
the INA, 8 U.S.C. 1101(a)(43), any alien who has been convicted of a
particularly serious crime, any alien for whom there are serious
reasons to believe that he or she committed a serious non-political
crime outside the United States, and any alien who fails to establish
that he or she is not subject to a mandatory denial of asylum due to
any regulatory criminal grounds under 8 CFR 208.13(c).
Although this proposed rule intersects with the Asylum EAD Reform
Rule, DHS is using current regulatory text as the basis for changes in
both rules. This is because any changes proposed by the Asylum EAD
Reform Rule at this point in the process are just that--proposed.
Therefore, DHS acknowledges that the regulatory text for either final
rule may differ from the exact provisions in the relevant proposed rule
in order to align the text with any updated regulations as of the time
of publication. For example, the Discretionary EAD Rule amends 8 CFR
274a.12(c) to outline the EAD categories that are currently non-
discretionary, which includes asylum EADs under (c)(8). However, this
provision may require edits at the final rule stage, to accurately
align both the Discretionary EAD and Asylum EAD rules. DHS notes that
while the proposed Discretionary EAD Rule includes changes that relate
to all employment authorization under 8 CFR 274a.12(c), the Asylum EAD
Reform Rule will address all (c)(8)-specific proposed changes.
2. Biometrics Rule
DHS is also concurrently proposing to amend its regulations
concerning the use and submission of biometrics in the administration
and enforcement of immigration and naturalization laws and the
adjudication of any immigration application, petition, or benefit or
any other related request or collection of information (``Biometrics
Rule'').\34\ The Biometrics Rule proposes to require the submission of
biometrics by any individual, regardless of age, filing or associated
\35\ with an immigration benefit request or other request or collection
of information, unless exempted. This incorporates any applicant,
petitioner, sponsor, supporter, derivative, dependent, or beneficiary,
including U.S. citizens, U.S. nationals, and lawful permanent
residents. It will define ``biometrics'' and expand modalities
authorized for collection by DHS. Further, the proposed rule will
codify USCIS's ability to reuse biometrics rather than requiring
applicants to submit new biometrics in all cases but permit the reuse
of biometrics only after completion of a biometric-based identity
verification. Finally, it will expand biometrics collection authority
upon alien arrest; establish an ``extraordinary circumstances''
standard to excuse a failure to appear at a biometric services
appointment; modify how VAWA self-petitioners and T nonimmigrant status
applicants demonstrate good moral
[[Page 34371]]
character; and clarify the purposes for which DHS can collect.
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\34\ Collection and Use of Biometrics by U.S. Citizenship and
Immigration Services, 90 FR49062 (Nov. 3, 2025).
\35\ By ``associated,'' DHS means a person with substantial
involvement or participation in the immigration benefit request or
other request or collection of information, such as a named
derivative, beneficiary, petitioner's signatory, sponsor, or co-
applicant. The terms ``file,'' ``submit,'' and ``associated with''
or variations thereof, as used throughout this rule, do not relate
to attorneys and accredited representatives, although attorneys and
accredited representatives may file or submit a request on behalf of
a client.
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The purpose of the Biometrics Rule is to standardize the
Department's collection of biometrics and provide notice to those
populations that will be subject to biometrics requirements. As
explained more in-depth in the Biometrics Rule, using biometrics for
identity verification \36\ and case management will assist DHS's
efforts to combat trafficking, confirm the results of biographical
criminal history checks, and deter fraud.
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\36\ See DHS, Biometrics, <a href="https://www.dhs.gov/biometrics">https://www.dhs.gov/biometrics</a> (last
updated Jan. 24, 2025).
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DHS welcomes comments on the combined impact of this proposed rule
with any intervening legislation, related rulemakings, and policy
changes that could either overlap or coincide with this rulemaking.
B. Background
1. Detention, Release, and Repatriation of Aliens Ordered Removed
Section 241 of the INA, 8 U.S.C. 1231, governs the detention,
release, and removal of aliens subject to final orders of removal. DHS
generally has 90 days after the date a removal order becomes
administratively final to remove the alien from the United States.\37\
This 90-day removal period can be extended if the alien fails or
refuses to make timely application in good faith for travel or other
documents necessary for the alien's departure or conspires or acts to
prevent removal.\38\ Under section 241(a)(2) of the INA, 8 U.S.C.
1231(a)(2), DHS ``shall detain'' an alien during the removal period and
is specifically prohibited from releasing an alien during the removal
period who has been found inadmissible under sections 212(a)(2) or
(a)(3)(B) of the INA, 8 U.S.C. 1182(a)(2) or (a)(3)(B), or deportable
under sections 237(a)(2) or (a)(4)(B) of the INA, 8 U.S.C. 1227(a)(2)
or (a)(4)(B) (criminal, security-related, and terrorism grounds).
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\37\ INA sec. 241(a)(1)(A) and (B)(i), 8 U.S.C. 1231(a)(1)(A)
and (B)(i).
\38\ INA sec. 241(a)(1)(C), 8 U.S.C. 1231(a)(1)(C).
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In certain instances, DHS is not able to remove aliens within the
90-day removal period. In such cases, DHS must comply with the U.S.
Supreme Court's decision in Zadvydas v. Davis.\39\ In Zadvydas, the
Supreme Court held that an alien with a final order of removal cannot
be kept in detention (unless special circumstances exist) \40\ once it
has been determined that there is not a ``significant likelihood of
removal in the reasonably foreseeable future.'' \41\ The Court
established 6 months as the ``presumptively reasonable period of
detention.'' \42\ After the 6-month period, once the alien provides
good reason to believe there is no significant likelihood of removal in
the reasonably foreseeable future, the Government must respond with
sufficient evidence to rebut that showing.\43\ In the event DHS
determines that removal is not likely to occur in the reasonably
foreseeable future, the alien must generally be temporarily released on
an order of supervision.\44\ During this period of release, the alien
is required to continue to make efforts (or assist in efforts) towards
his or her removal while DHS continues to pursue the alien's
removal.\45\
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\39\ 533 U.S. 678 (2001).
\40\ Under 8 CFR 241.14, aliens with ``special circumstances''
are those: (1) that have a highly contagious disease that threatens
public safety; (2) whose release would have serious adverse foreign
policy implications; (3) who present a significant threat to
national security or significant risk of terrorism; or (4) who are
especially dangerous.
\41\ Zadvydas, 533 U.S. at 701.
\42\ Id.
\43\ Id.; see also 8 CFR 241.13(d).
\44\ INA 241(a)(3), 8 U.S.C. 1231(a)(3); see also 8 CFR 241.5.
Aliens subject to an expedited removal order, however, are not
subject to release on an order of supervision. INA sec.
235(b)(1)(B)(iii)(IV), 8 U.S.C. 1225(b)(1)(B)(iii)(IV) (an alien
subject to expedited removal under section 235 ``shall be detained
pending a final determination of credible fear of persecution and,
if found not to have such a fear, until removed'').
\45\ See 8 CFR 241.5(a).
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If an alien is temporarily released on an order of supervision, the
order of supervision will contain conditions for release, including
requiring the alien to appear periodically before an immigration
officer and comply with the conditions prescribed in the order of
supervision.\46\ If an alien fails to comply with the conditions of
release as specified in the order of supervision, DHS can take the
alien back into custody and detain the alien until he or she is
removed. Aliens who willfully fail to comply with an order of
supervision can also be criminally prosecuted under section 243(b) of
the INA, 8 U.S.C. 1253(b).
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\46\ INA sec. 241(a)(3), 8 U.S.C 1231(a)(3); 8 CFR 241.5(a). DHS
may also require an alien temporarily released on an order of
supervision to post a bond of a sufficient amount to ensure that the
alien complies with the terms for release, including surrendering
him- or herself to DHS custody for removal. 8 CFR 241.5(b).
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Once an alien has been issued a final order of removal, ICE is
responsible for effectuating the alien's removal from the United States
pursuant to section 241 of the INA, 8 U.S.C. 1231, and 8 CFR part 241.
Generally, a travel document must be obtained from a foreign government
that will allow the alien to depart the United States and be
repatriated either to the alien's country of birth, citizenship,
nationality, or last habitual residence or to an alternate country that
has agreed to accept the alien. Based on 2019 removal data, it takes
DHS an average of 187.19 days, roughly 6 months, to obtain travel
documents and remove an alien from the United States.\47\ As this
average has declined in recent years, the population of aliens that
will be released on OSUP will likely decrease.\48\
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\47\ This is the most recent publicly available data.
Furthermore, even though the average time to obtain travel documents
across all countries was 187.19 days, the process for negotiating
with foreign governments to obtain travel documents is dynamic.
While there may be a period of inactivity by a particular foreign
government to cooperate with issuing travel documents for a specific
alien, a policy shift can also occur quickly and result in prompt
repatriation. See Office of Inspector General, ``ICE Faces Barriers
in Timely Repatriation of Detained Aliens'' (Mar. 11, 2019), <a href="https://www.oig.dhs.gov/sites/default/files/assets/2019-03/OIG-19-28-Mar19.pdf">https://www.oig.dhs.gov/sites/default/files/assets/2019-03/OIG-19-28-Mar19.pdf</a>.
\48\ Per internal DHS data and analysis.
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However, some countries refuse or unreasonably delay the issuance
of the necessary travel documents to aliens who have been issued a
final order of removal. Countries that unreasonably delay accepting the
repatriation of their citizens or nationals impede DHS's ability to
remove aliens in a timely manner and interfere with the United States'
sovereign interest in enforcing its immigration laws. Under section
243(d) of the INA, 8 U.S.C. 1253(d), the Secretary has the authority to
notify the Secretary of State that a specific country is refusing or
unreasonably delaying acceptance of its nationals. Upon such
notification from the Secretary, the Secretary of State must order
consular officers in that country to discontinue issuing immigrant
visas, nonimmigrant visas, or both to citizens and nationals of that
country.\49\ While DHS and the U.S. Department of State (DOS) work
through various diplomatic channels and avenues to get such countries
to comply, and most countries do comply, there are countries that
refuse to assist in the repatriation of their citizens and nationals,
and as a result, the United States has imposed visa sanctions under
section 243(d) of the INA, 8 U.S.C. 1253(d), to get such countries to
cooperate.\50\
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\49\ See INA sec. 243(d), 8 U.S.C. 1253(d); see also Memorandum
of Understanding Between the Secretaries of State and Homeland
Security Concerning Implementation of Section 428 of the Homeland
Security Act of 2002, para. 3(c) (2003).
\50\ See, e.g., DHS, ``DHS Announces Implementation of Visa
Sanctions,'' July 10, 2018 (implementing visa restrictions on the
governments of Burma and Laos for denying or unreasonably delaying
the acceptance of their nationals who have been ordered removed from
the United States), <a href="https://www.dhs.gov/archive/news/2018/07/10/dhs-announces-implementation-visa-sanctions">https://www.dhs.gov/archive/news/2018/07/10/dhs-announces-implementation-visa-sanctions</a>.
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[[Page 34372]]
2. Withholding of Removal Under the INA and Regulations Implementing
CAT and Deferral of Removal Under Regulations Implementing CAT
Even if an alien is inadmissible or deportable and has a final
order of removal, DHS's authority to remove an alien in certain cases
may be further restricted by certain statutory and regulatory
provisions implementing U.S. treaty obligations concerning non-
refoulement (non-return). The United States is a party to the 1967
Protocol relating to the Status of Refugees (Protocol), which
incorporates, inter alia, Article 33 of the 1951 Convention relating to
the Status of Refugees. 198 U.N.T.S. 137. Article 33 specifically
provides that ``[n]o contracting state shall expel or return (refouler)
a refugee in any manner whatsoever to the frontier of territories where
his life or freedom would be threatened on account of his race,
religion, nationality, membership of a particular social group, or
political opinion.'' \51\ The United States is also a party to CAT.\52\
Article 3 of CAT requires that ``[n]o State Party shall expel, return
(`refouler') or extradite a person to another state where there are
substantial grounds for believing that he would be in danger of being
subjected to torture.'' \53\
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\51\ Convention Relating to the Status of Refugees, Treaty
Series, vol. 198, p. 137, art. 33 (July 28, 1951).
\52\ Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, Treaty Series, vol. 1465 (Dec.
10, 1984).
\53\ Id.
---------------------------------------------------------------------------
Though neither of these treaties is self-executing, the United
States has implemented its non-refoulement obligations under these
treaties in statutes and regulations.\54\ With respect to Protocol,
Congress implemented the United States' non-refoulement obligations as
part of the Refugee Act of 1980, section 241(b)(3) of the INA, 8 U.S.C.
1231(b)(3). With respect to CAT, Congress directed the appropriate
agencies to publish regulations to implement the United States'
obligations under Article 3 of the CAT in the Foreign Affairs Reform
and Restructuring Act of 1998 (FARRA), Public Law 105-277, div. G.,
sec. 2442(b) (Oct. 21, 1998). The Department of Justice (DOJ) published
regulations in 1999 implementing FARRA sec. 2442. See 64 FR 8478 (Feb.
19, 1999). The regulations governing withholding of removal based on
section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), and withholding and
deferral of removal under CAT are now codified in principal part at 8
CFR 208.16 through 208.18 and 1208.16 through 1208.18.
---------------------------------------------------------------------------
\54\ See, e.g., Trinidad y Garcia v. Thomas, 683 F.3d 952, 955
(9th Cir. 2012); Pierre v. Gonzales, 502 F.3d 109, 119-20 (2d Cir.
2007); Matter of H-M-V-, 22 I&N Dec. 256, 259-60 (BIA 1998).
---------------------------------------------------------------------------
Aliens granted withholding of removal based on section 241(b)(3) of
the INA, 8 U.S.C. 1231(b)(3), and aliens granted withholding of removal
based on the regulations implementing CAT, 8 CFR 208.16(c) and
1208.16(c), are both subject to mandatory bars to withholding if the
aliens participated in Nazi persecution, participated in genocide,
committed an act of torture and extrajudicial killing, participated in
the persecution of others, have been convicted of a particularly
serious crime, have committed a serious nonpolitical crime outside the
United States prior to arrival, or are a danger to the security of the
United States.\55\ However, even if an alien is not eligible for
withholding under the provisions noted above because he or she is
subject to one of the mandatory bars to withholding, DHS still is not
permitted to remove an alien from the United States if an Immigration
Judge (IJ) or the Board of Immigration Appeals (BIA) has determined
that removal would result in the alien being removed to a country where
he or she would more likely than not be tortured. 8 CFR 208.17 and
1208.17. In such instances, the IJ or BIA defers removal to that
country.
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\55\ The regulations at 8 CFR 208.16(d)(2) specifically provide
that an application for withholding of removal under the regulations
implementing CAT shall be denied if the alien falls within section
241(b)(3)(B) of the INA, 8 U.S.C. 1231(b)(3)(B).
---------------------------------------------------------------------------
Withholding of deportation or removal based on section 241(b)(3) of
the INA, 8 U.S.C. 1231(b)(3), or the regulations implementing U.S.
obligations under CAT Article 3 (``CAT withholding'') (if the alien is
not subject to a mandatory bar) and CAT deferral of removal are
mandatory and must be granted if the alien meets the burden of proof.
See 8 CFR 1208.16(b), (c)(4) and 1208.17(a). Once an alien has been
granted withholding or deferral of removal, DHS cannot remove the alien
to the country from which removal has been withheld or deferred unless
the alien's case is reopened and withholding is terminated under 8 CFR
208.24 or 1208.24, or deferral is terminated under 8 CFR 208.17 or
1208.17. In most instances, an alien granted withholding of removal or
deferral of removal under the regulations implementing CAT will be
released pursuant to an order of supervision, but such an order does
not alter or affect the nondiscretionary nature of the withholding or
deferral of removal grant, even if the alien subsequently violates the
conditions for release as specified in the order of supervision. Such
violations could result in a return of the alien to ICE custody but
will not result in the alien's actual removal from the United States to
the relevant country or countries in question unless the alien's case
is reopened, and withholding is terminated under 8 CFR 208.24 or
1208.24 or deferral of removal is terminated under 8 CFR 208.17 or
1208.17.
3. Parole
The INA confers upon the Secretary the narrow discretionary
authority to parole applicants for admission, regardless of
admissibility, into the United States ``temporarily under such
conditions as [DHS] may prescribe only on a case-by-case basis for
urgent humanitarian reasons or significant public benefit.'' \56\
Additionally, upon a finding by DHS that the purpose of the temporary,
discretionary parole has been served, the alien is required to depart
the United States ``or be returned to the custody from which he was
paroled and thereafter his case shall continue to be dealt with in the
same manner as that of any other applicant for admission to the United
States.'' \57\
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\56\ INA sec. 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A); see also 8
CFR 212.5(a) and (c) through (e) (discretionary authority for
establishing conditions of parole and for terminating parole).
\57\ INA sec. 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A).
---------------------------------------------------------------------------
Since the late 19th century, the Government has used some form of
parole to allow inadmissible aliens to come into and temporarily remain
in the United States.\58\ Congress did not codify this parole authority
until 1952, with the enactment of the INA.\59\ Section 212(d)(5) of the
1952 INA authorized the Attorney General to parole an alien into the
United States for ``emergent reasons or for reasons deemed strictly in
the public interest.'' \60\ In a House Report accompanying the 1952
INA, Congress indicated that parole was meant for
---------------------------------------------------------------------------
\58\ See, e.g., Kaplan v. Tod, 267 U.S. 228, 230 (1925); see
also Nishimuru Ekiu v. United States, 142 U.S. 651, 661 (1892)
(recognizing that the immigration authorities could authorize an
alien to come ashore temporarily, without admission, while
admissibility was litigated, leaving the alien in the same position
as she was); Leng May Ma v. Barber, 357 U.S. 185, 188-90 (1958) (a
paroled alien is still deemed an alien seeking admission to the
United States).
\59\ Public Law 82-414, 66 Stat. 163 (June 27, 1952).
\60\ Id. at 66 Stat 188.
emergency cases, such as the case of an alien who requires immediate
medical attention before there has been an opportunity for an
immigration officer to inspect him, and in cases where it is
strictly in the public interest to have an inadmissible alien
present in the
[[Page 34373]]
United States, such as, for instance, a witness or for purposes of
prosecution.\61\
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\61\ See, e.g., H.R. Rep. 82-1365, p. 1706 (Feb. 14, 1952).
The INA, however, did not address whether the authority could be
used to parole groups of inadmissible aliens.
Subsequent to 1952, the parole authority was repeatedly used to
parole large groups of inadmissible aliens, namely refugees from
Hungary, Cuba, China, Czechoslovakia, the Soviet Union, Uganda, and
Vietnam.\62\ Although some in Congress criticized this use of the
parole authority,\63\ Congress passed legislation to provide a path to
lawful permanent residence for certain groups of aliens who had been
paroled into the United States by the U.S. Government.\64\
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\62\ See, e.g., Implementation of Haitian Family Reunification
Parole Program, 79 FR 75581 (Dec. 18, 2014); Procedures for Credible
Fear Screening and Consideration of Asylum, Withholding of Removal,
and CAT Protection Claims by Asylum Officers, 87 FR 18078 (Mar. 29,
2022) (lowering the standard to parole an alien who had not yet
established credible fear).
\63\ See, e.g., H. Rept. 89-748, p. 3335 (Sept. 15, 1965),
accompanying the Immigration and Nationality Act--Amendments of
1965:
Inasmuch as definite provision has now been made for refugees,
it is the express intent of the committee that the parole provisions
of the Immigration and Nationality Act, which remain unchanged by
this bill, be administered in accordance with the original intention
of the drafters of the legislation. The parole provisions were
designed to authorize the Attorney General to act only in emergent,
individual, and isolated situations, such as the case of an alien
who requires immediate medical attention, and not for the
immigration of classes or groups outside the limit of the law.
\64\ See, e.g., Public Law 85-559, 72 Stat. 419-20 (July 25,
1958) (stating that any alien who was paroled into the United States
as a refugee from the Hungarian Revolution who is found ``to have
been and to be admissible as an immigrant at the time of his arrival
in the United States and at the time of his inspection and
examination, except for the fact that he was not and is not in
possession of the documents required by . . . the Immigration and
Nationality Act, shall be regarded as lawfully admitted to the
United States for permanent residence as of the date of his
arrival''); Public Law 89-732, 80 Stat. 1161 (Nov. 2, 1966)
(similarly relating to aliens paroled into the United States after
fleeing Cuba due to the 1959 Cuban Revolution).
---------------------------------------------------------------------------
In 1980, Congress passed the Refugee Act, narrowing the parole
authority by prohibiting the parole of refugees unless ``compelling
reasons in the public interest with respect to that particular alien''
required parole rather than admission as a refugee.\65\ The parole
authority for non-refugees remained the same.
---------------------------------------------------------------------------
\65\ Public Law 96-212 (1980) (codified at 8 U.S.C.
1182(d)(5)(B)).
---------------------------------------------------------------------------
According to some scholars, the Refugee Act's amendment represented
continued congressional displeasure with the Executive Branch's use of
the parole authority in the preceding decades.\66\ The Senate Report
accompanying the Refugee Act states that one of the Act's purposes was
to ``[e]nd[ ] the years of ad hoc use of the parole authority, which
has been implemented by custom rather than clearly defined by law.''
\67\
---------------------------------------------------------------------------
\66\ E.g., Adam B. Cox & Cristina M. Rodr[iacute]guez, The
President and Immigration Law, 119 Yale L.J. 458, 474-76 (2009)
(``Congress added the language to the INA in 1980 in large part to
restrict the use of parole in refugee contexts, including with
respect to the Executive's heavy reliance on the power to manage the
Haitian exoduses.''); Peter Margulies, The Boundaries of Executive
Discretion: Deferred Action, Unlawful Presence, and Immigration Law,
64 a.m. U. L. Rev. 1183, 1213 (2015) (``This language itself emerged
in 1980 from congressional displeasure over expansive uses of
discretion by the Executive Branch.'').
\67\ S. Rep. 96-256 at 5 (1979).
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Despite this congressional criticism, the Executive Branch
continued to use the parole authority to parole categories of aliens
from 1980 until 1996, including for Vietnamese and other Southeast
Asian populations, and U.S. expatriates.\68\ In 1996, Congress passed
the IIRIRA.\69\ As part of its reform of the immigration laws, Congress
specifically addressed its concerns about the broad use of the parole
authority to allow groups of refugees to come to the United States.
Congress amended the text of section 212(d)(5)(A) of the INA, 8 U.S.C.
1182(d)(5)(A), to make clear that the Attorney General could grant
parole, as a matter of discretion, ``only on a case-by-case basis for
urgent humanitarian reasons or significant public benefit'' (emphasis
added).\70\
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\68\ Refugee Act of 1979, S.643 Before the S. Comm. on the
Judiciary, 96th Cong. 253, (1979) (annual report of H.E.W. on the
Indochinese Refugee Assistance Program) (describing an ``expanded
parole program'' for 11,000 additional Cambodian, Vietnamese, and
Laotian refugees); Marian Nash Leich, Contemporary Practice of the
United States Relating to International Law, 82 a.m. J. of Int'l L.
336, 336-337 (1988) (parole for U.S. expatriates who had renounced
U.S. citizenship) (citing to Circular Telegram, State 386507).
\69\ Public Law 104-208, Div. C (Sept. 30, 1996).
\70\ Id. at title VI, sec. 602.
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Following Congress' amendment in 1996, the parole authority
continued to be used expansively to create new categorical parole
programs. In 2000, for example, the parole authority was used to manage
the statutorily sunsetting Visa Waiver Pilot Program under section 217
of the INA, 8 U.S.C. 1187, in its entirety, to avoid the wholesale
disruption of international travel and commerce, and the serious harm
to the U.S. economy and foreign relations, that would have resulted
from suddenly imposing visa requirements on visitors for business or
pleasure from most developed countries.\71\ Under this Visa Waiver
Pilot Program, tens of millions of foreign visitors were paroled into
the United States between May 1 and October 1, 2000.\72\ In subsequent
years, the parole authority was used to create smaller categorical
programs. For example, the Bush Administration created the Cuban Family
Reunification Parole program in 2007.\73\ The Obama Administration
created several parole programs, including the Haitian Family
Reunification Parole Program in 2014,\74\ the Filipino World War II
Veterans Parole program in 2016,\75\ and Parole for International
Entrepreneurs in 2017.\76\ More recently, the Biden Administration
created several categorical parole programs,\77\ including the parole
programs for inadmissible aliens from Cuba, Haiti, Nicaragua, and
Venezuela (``CHNV parole programs'').\78\
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\71\ David J. Bier, 126 Parole Orders over 7 Decades: A
Historical Review of Immigration Parole Orders, July 17, 2023, at
<a href="https://www.cato.org/blog/126-parole-orders-over-7-decades-historical-review-immigration-parole-orders">https://www.cato.org/blog/126-parole-orders-over-7-decades-historical-review-immigration-parole-orders</a>.
\72\ Cong. Research Service, Visa Waiver Program (Oct. 15,
2024), <a href="https://www.congress.gov/crs-product/RL32221">https://www.congress.gov/crs-product/RL32221</a>.
\73\ 72 FR 65588 (Nov. 21, 2007).
\74\ 79 FR 75581 (Dec. 12, 2014).
\75\ 81 FR 28097 (May 9, 2016).
\76\ See 82 FR 5238 (Jan. 17, 2017). In 2018, DHS published a
proposed rule to rescind the International Entrepreneur Parole
Program. 83 FR 24415 (May 29, 2018).
\77\ 88 FR 1266 (Jan. 9, 2023); 88 FR 26329 (Apr. 28, 2023); 88
FR 1243 (Jan. 9, 2023); 88 FR 26327 (Apr. 28, 2023); 88 FR 1255
(Jan. 9, 2023); 87 FR 63507 (Oct. 19, 2022); 88 FR 1279 (Jan. 9,
2023).
\78\ On March 25, 2025, the Trump Administration published a
notice in the Federal Register titled, ``Termination of Parole
Processes for Cubans, Haitians, Nicaraguans, and Venezuelans''. 90
FR 13611 (Mar. 25, 2025). On April 14, 2025, a United States
district court issued a preliminary injunction order staying parts
of the FRN. See Svitlana Doe,--v. Noem, 778 F. Supp. 3d 311 (D.
Mass. 2025). However, DHS filed an application for a stay of the
district court order with the U.S. Court of Appeals for the First
Circuit, which was denied. On May 8, 2025, DHS filed with the
Supreme Court an application to stay the district court's order. On
May 30, 2025, the Supreme Court granted DHS' application for stay of
the district court's order pending disposition of the appeal pending
before the U.S. Court of Appeals for the First Circuit. Noem v. Doe,
145 S. Ct. 1524 (2025). Accordingly, the parole termination notices
and employment authorization termination notices that DHS sent to
aliens paroled under the CHNV parole programs remain in effect.
USCIS also will not process any new requests for parole related to
CHNV programs.
---------------------------------------------------------------------------
On July 4, 2025, the President signed H.R. 1, Public Law 119-21,
139 Stat. 72 into law. It established a new fee for an initial or
renewal application for employment authorization by any alien paroled
into the United States and also placed a limit on the validity of
employment authorization to one year or the duration of the alien's
parole, whichever is shorter.\79\
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\79\ See Section 100003(b)(1) of Part I, Title X of Public Law
119-21 (July 4, 2025), 8 U.S.C. 1803(b)(1) (defining the validity
period for initial employment authorization of parolees to a period
of 1 year or for the duration of the alien's parole, whichever is
shorter); see also Section 100010(a) of Part I, Title X of Public
Law 119-21 (July 4, 2025); 8 U.S.C. 1809(a) (defining the validity
period for renewal employment authorization of parolees to a period
of 1 year or for the duration of the alien's parole, whichever is
shorter.). On July 22, 2025, USCIS published a notice in the Federal
Register at 90 FR 34511announcing the new H.R. 1 fee requirements,
applicable to benefit requests postmarked on or after July 22, 2025,
which includes application for employment authorization filed by
parolees under 8 CFR 274a.12(c)(11).
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[[Page 34374]]
4. Deferred Action
Since the late 1800s, the Supreme Court has recognized the
authority of the Executive Branch to expel or exclude aliens from the
United States and viewed such power as ``an incident of sovereignty
belonging to the government of the United States as a part of those
sovereign powers delegated by the Constitution.'' \80\ This authority
was codified in the Immigration and Nationality Act of 1952, 8 U.S.C.
1101 et seq. Over the years, Congress has clarified and strengthened
the immigration enforcement authorities and provisions in the INA.\81\
In 2002, with the creation of DHS, Congress reaffirmed this authority
by giving the Secretary authority to enforce the immigration laws; to
apprehend, detain, and remove aliens from the United States; and to
establish ``national immigration enforcement policies and priorities.''
\82\
---------------------------------------------------------------------------
\80\ Chae Chan Ping v. United States, 130 U.S. 581, 606-09
(1889).
\81\ For example, in 1996, Congress passed the Anti-Terrorism
and Effective Death Penalty Act (AEDPA), Public Law 104-132, title
IV, 110 Stat. 1214 (Apr. 24, 1996) and IIRIRA. AEDPA and IIRIRA made
significant changes to U.S. immigration laws. By passing AEDPA and
IIRIRA, Congress underscored the importance of enforcement of the
immigration laws as critical for upholding national security, public
safety, and the integrity of the U.S. immigration system.
\82\ See Homeland Security Act of 2002 (HSA), Public Law 107-
296, secs. 202(5), 234; 6 U.S.C. 202(5), 557; see also INA secs.
103(a)(1) 8 U.S.C. 1103(a)(1)
---------------------------------------------------------------------------
The Secretary's enforcement powers also come with an inherent
authority to exercise prosecutorial discretion to not take a specific
enforcement action against an alien.\83\ Deferred action is a form of
discretion in which DHS chooses to not seek an alien's removal from the
United States even though the alien lacks lawful status or is otherwise
removable from the United States.\84\ Deferred action is not a legal
immigration status that permits an alien to obtain immigration relief
for which the alien is not eligible. Rather, deferred action is a form
of enforcement discretion reflecting a decision not to pursue removal
from the United States for a specified period of time. Unlike parole,
deferred action was not created by statute and is not specifically
defined in the INA. However, the authority not to execute an
enforcement action is a quintessential feature of the Secretary's
immigration enforcement powers. The Supreme Court has stated that the
decision not to take an enforcement action is within the discretion of
the agency, and such decisions are generally not subject to judicial
review.\85\
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\83\ See, e.g., United States v. Texas, 599 U.S. 670, 679
(2023); Arizona v. United States, 567 U.S. 387, 396 (2012); Heckler
v. Chaney, 470 U.S. 821 (1985).
\84\ See, e.g., Reno v. Am.-Arab Anti-Discrimination Comm.
(AADC), 525 U.S. 471, 483-84 (1999).
\85\ See, e.g., Heckler, 470 U.S. at 831-33; see also Texas, 599
U.S. at 678-79 (describing the Executive's power to prioritize and
decide how aggressively to enforce the laws).
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The former INS used deferred action for decades.\86\ Prior to 1975,
it was known as ``non-priority status'' and recognized as a use of
prosecutorial discretion to defer removal of an alien for a specific
period.\87\ Placing an alien in non-priority status was an authority
exercised by field district directors and was governed by INS Operating
Instructions (OI) and policy. For example, the OIs previously provided
examples of factors district directors could consider when deciding
whether to place an alien in non-priority status, which included: (1)
the likelihood of the alien's removal from the United States; (2) the
likelihood the alien would depart without formal proceedings; (3) the
age and physical condition of the alien in terms of affecting the
alien's ability to travel; (4) the likelihood another country would
accept the alien, if the alien were removed; (5) whether the alien
could qualify for relief under the immigration laws that would prevent
or indefinitely delay deportation from the United States; (6) whether
the alien was considered a high priority for removal (e.g., terrorists,
international drug traffickers, smugglers); and (7) whether the alien's
removal would generate adverse publicity.\88\ Non-priority status was
formally renamed deferred action in 1996.\89\ Deferred action is not a
legal immigration status that permits an alien to obtain immigration
relief for which the alien is not eligible. Rather, deferred action is
a form of enforcement discretion reflecting a decision not to pursue
removal from the United States for a specified period.
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\86\ See Charles Gordon et al., ``Immigration Law and
Procedure'' (1956) 6 sec. 72.03(2)(h). See also generally Leon
Wildes, ``The Operations Instructions of The Immigration Service:
Internal Guidelines or Binding Rules?,'' 17 San Diego L. Rev. 99
(1979).
\87\ Id.
\88\ See Charles Gordon et al., at 16 Sec. OI 242.1.
\89\ Id.
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Even though there is no direct statutory authority for deferred
action, Congress has acknowledged its use and, on certain limited and
unique occasions, has referenced deferred action as an interim form of
enforcement discretion to address compelling humanitarian
circumstances, further a specific policy goal, or act as a bridge until
specific legislative action could provide permanent relief.\90\ For
example, Congress referenced deferred action for alien victims of
domestic abuse, trafficking, and criminal activity, as well as family
members of individuals who perished during the 9/11 attacks, and
surviving family members of military personnel who died while serving
on active duty in the U.S. Armed Forces.\91\
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\90\ Cong. Research Service, An Overview of Discretionary
Reprieves from Removal: Deferred Action, DACA, TPS, and Others (Apr.
10, 2018) <a href="https://www.congress.gov/crs-product/R45158">https://www.congress.gov/crs-product/R45158</a>.
\91\ See INA sec. 204(a)(1)(D)(i)(II) and (IV) (aliens battered
or subjected to extreme cruelty); INA sec. 237(d)(2) (victims of
trafficking and qualifying criminal activity); title IV, subtitle C,
sections 421-428, Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act
of 2001, Public Law 107-56, 115 Stat. 272 (Oct. 26, 2001) (certain
family members of lawful permanent resident 9/11 victims);
Posthumous Benefits for Surviving Spouses, Children, and Parents of
Certain Military Personnel, National Defense Authorization Act of FY
2004, Public Law 108-136, 117 Stat. 1392, title XVII, sec.
1703(c)(1)(A) and (d)(1) (certain surviving spouses, parents,
children of deceased veteran of U.S. Armed Forces).
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DHS still uses deferred action today, not only to address discrete
situations and cases where there are exigent circumstances or
compelling humanitarian factors, but also as ``an act of administrative
choice to give some cases lower priority.'' \92\ Deferred action,
however, was never meant to supplant the current legal immigration
process or provide long-term relief solely to allow an inadmissible,
removable, or otherwise ineligible alien to remain in the United States
until he or she can qualify for a legal status.
---------------------------------------------------------------------------
\92\ See AADC, 525 U.S. at 483-84.
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While DHS has previously chosen to make deferred action available
to large populations of aliens, the main and ancillary benefits of such
make the granting of deferred action an extraordinary exercise of the
Secretary's discretionary authority. A grant of deferred action should
only be made on a case-by-case basis after careful consideration of the
totality of the circumstances. Additionally, as deferred action is an
exercise of prosecutorial discretion, it is subject to termination at
any time and for any reason.
5. Employment Authorization
Whether an alien is authorized to work in the United States depends
on the alien's status in the United States
[[Page 34375]]
and whether employment is specifically authorized by statute or
pursuant to the Secretary's general discretionary authority. There are
very few statutory provisions that specifically require the provision
of employment authorization.\93\ While some statutory provisions
specifically allow the Secretary to grant employment authorization as a
matter of discretion,\94\ the Secretary's general authorities under
sections 103(a), 214(a)(1), and 274A(h)(3) of the INA, 8 U.S.C.
1103(a), 1184(a), 1324a(h)(3), among other provisions, provide the
authority to establish discretionary employment authorization
categories. However, in the context of aliens ordered removed, section
241(a)(7) of the INA, 8 U.S.C. 1231(a)(7), specifically prohibits an
alien who has been ordered removed from the United States from being
eligible to receive employment authorization unless the Secretary
determines that the alien cannot be removed because no country, as
designated by the alien or delineated under section 241(b) of the INA,
8 U.S.C. 1231(b), will accept the alien or the alien's removal is
otherwise impracticable or contrary to the public interest.
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\93\ See, e.g., INA sec. 101(i)(2), 8 U.S.C. 1101(i)(2)
(requiring T nonimmigrants to be employment authorized); INA sec.
214(c)(2)(E), 8 U.S.C. 1184(c)(2)(E) (requiring spouses of L
nonimmigrants to be employment authorized); INA sec. 214(e)(2), 8
U.S.C. 1184(e)(2) (requiring spouses of E treaty traders/investors
to be employment authorized; INA sec. 214(p)(3)(B), 8 U.S.C.
1184(p)(3)(B) (requiring U nonimmigrants to be employment
authorized).
\94\ See, e.g., INA sec. 106(a), 8 U.S.C. 1105a(a) (providing
that the Secretary may grant employment authorization to alien
spouses of certain nonimmigrants if the alien spouse or child of
that alien spouse were battered or subjected to extreme cruelty);
INA sec. 214(p)(6), 8 U.S.C. 1184(p)(6) (providing that the
Secretary may grant employment authorization to aliens who have a
pending bona fide application for U nonimmigrant status).
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DHS regulations at 8 CFR 274a.12 set forth the categories of aliens
who are authorized to work in the United States, including: those
aliens who are authorized to work incident to their status (8 CFR
274a.12(a)); aliens who are authorized to work in the United States but
only for a specific employer (8 CFR 274a.12(b)); and aliens who fall
within a category that the Secretary has determined may be employment
authorized as a matter of discretion (8 CFR 274a.12(c)). If required to
file an application for employment authorization with USCIS, aliens
must also submit the appropriate fee (unless exempt or waived) and in
accordance with the form instructions. See 8 CFR 274a.13.
6. Biometrics Submission
Several sections of the INA provide DHS with the specific authority
to collect or require submission of biometrics. See, e.g., INA section
235(d)(3), 8 U.S.C. 1225(d)(3) (providing authority ``to take and
consider evidence of or from any person touching the privilege of any
alien or person he believes or suspects to be an alien to enter,
reenter, transit through, or reside in the United States or concerning
any matter which is material and relevant to the enforcement of this
chapter and the administration of the Service''); INA section 287(b), 8
U.S.C. 1357(b) (powers of immigration officers and employees to
administer oaths and take evidence); INA section 333, 8 U.S.C. 1444
(requirement to furnish photographs for naturalization); INA section
335, 8 U.S.C. 1446 (investigation and examination of applicants for
naturalization); INA section 262(a), 8 U.S.C. 1302(a) (requirement for
aliens to register and be fingerprinted); INA section 264(a), 8 U.S.C.
1304(a) (authority to prescribe contents of forms required for alien
registration); see also INA section 103(a)(3), 8 U.S.C. 1103(a)(3)
(conferring broad authority on the Secretary to ``establish such
regulations; prescribe such forms of bond, reports, entries, and other
papers; issue such instructions; and perform such other acts as he
deems necessary for carrying out his authority under the'' immigration
laws).
DHS regulations accordingly provide that USCIS may require any
applicant, petitioner, sponsor, beneficiary, or individual filing a
benefit request to submit biometrics and pay the biometric services
fee.\95\ See 8 CFR 103.2(b)(9). DHS has the authority to require the
submission of biometrics from any alien, lawful permanent resident or
U.S. citizen filing a request, on a case-by-case basis, through law,
regulation, form instructions, or a Federal Register notice. Id.; see
also 8 CFR 103.16. Current regulations allow DHS to use biometric
information to conduct background and security checks, adjudicate
immigration benefits, and perform other functions related to the
administration of the INA. See id. at 103.16(a). DHS has the authority
to charge a biometric services fee associated with the submission of
biometric information. See 8 CFR 103.17.
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\95\ Currently, biometrics collection generally refers to the
collection of fingerprints, photographs, and signatures. See USCIS,
``Preparing for Your Biometric Services Appointment'' (July 6,
2023), <a href="https://www.uscis.gov/forms/forms-information/preparing-your-biometric-services-appointment">https://www.uscis.gov/forms/forms-information/preparing-your-biometric-services-appointment</a> (describing biometrics as including
fingerprints, photographs, and digital signature).
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On January 31, 2024, USCIS published a final rule to adjust certain
immigration and naturalization benefit request fees for the first time
since 2016.\96\ 89 FR 6194 (Jan. 31, 2024) (Fee Rule). The Fee Rule,
among other changes, amended USCIS filing fees to incorporate a
``biometric services fee'' into the cost of the related form filing fee
itself rather than charging a separate biometric fee. See 89 FR at
6277-78; see also 88 FR 402, 484-85 (Jan. 4, 2023) (proposed rule).\97\
The new filing fees were effective for filings postmarked April 1,
2024, and later. The USCIS Fee Schedule is published in the Form G-
1055, Fee Schedule.\98\ The most recent Fee Schedule was published on
March 6, 2025.
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\96\ USCIS issued a final rule to adjust fees in 2020, but that
rule was preliminarily enjoined following litigation and ultimately
never went into effect. 85 FR 46788 (Aug. 3, 2020); Immigrant Legal
Res. Ctr. v. Wolf, 491 F. Supp. 3d 520 (N.D. Cal. 2020) (ILRC); Nw.
Immigrant Rights Project v. USCIS, 496 F. Supp. 3d 31 (D.D.C. 2020)
(NWIRP).
\97\ The exception to this change is Form I-821, Application for
Temporary Protected Status, which retained a separate biometric
services fee due to the statutory $50 maximum TPS registration fee.
8 CFR 106.2(a)(48)(iii); see INA sec. 244(c)(1)(B), 8 U.S.C.
1254a(c)(1)(B); 88 FR 485; see also 8 U.S.C. 1254b(a) (``In addition
to collection of registration fees described in section
1254a(c)(1)(B) of this title, fees for fingerprinting services,
biometric services, and other necessary services may be collected
when administering the program described in section 1254a of this
title.'').
\98\ <a href="https://www.uscis.gov/g-1055">https://www.uscis.gov/g-1055</a> (last updated Mar. 6, 2025).
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The Fee Rule provided DHS flexibility in its biometrics submission
practices and policies to ensure that necessary adjustments can be made
to meet emerging needs, conduct biometrics-based background checks,
produce documents, and verify identities, while reducing filing
rejections. This approach simplified the fee structure, created a more
user-friendly experience, reduced rejections of benefit requests for
failure to include a separate biometric services fee, and better
reflected how USCIS uses biometric information.
7. E-Verify
Originating in 1996, the E-Verify program is a web-based system
that allows enrolled employers to confirm the eligibility of their
employees to work in the United States.\99\ E-Verify employers verify
the identity and employment authorization of newly hired employees by
electronically matching information provided by employees on the Form
I-9, Employment Eligibility Verification, against records available to
DHS
[[Page 34376]]
(identity and employment authorization) and the Social Security
Administration (SSA) (identity verification), thereby assisting
employers in maintaining a legal workforce and reducing the use of
fraudulent work documents. It also helps to improve the accuracy of
wage and tax reporting.
---------------------------------------------------------------------------
\99\ See E-Verify, ``About E-Verify'' <a href="https://www.e-verify.gov/about-e-verify">https://www.e-verify.gov/about-e-verify</a>.
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E-Verify is a free, fast, online service that electronically
confirms an employee's information against millions of government
records and provides results within as few as 3 to 5 seconds. While E-
Verify is a voluntary program, some employers are required to enroll in
it as a condition of Federal contracting, or as a condition of business
licensing under State legislation or other applicable law.\100\
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\100\ See, e.g., E.O. 13465 of June 6, 2008, Amending Executive
Order 12989, as amended, 73 FR 33285 (June 6, 2008) (requiring that
federal contractors participate in E-Verify); Ariz. Rev. Stat. sec.
23-214 (requiring every employer to ``verify the employment
eligibility of the employee through the E-Verify program'').
Overall, 24 states have passed laws to require employers to utilize
E-Verify to varying degrees, while 7 states, including Arizona,
Georgia, Mississippi, North Carolina, South Carolina, Tennessee, and
Utah, have E-Verify laws that require all or most employers to use
E-Verify.
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Before an employer can participate in the E-Verify program, the
employer must enter into a Memorandum of Understanding (MOU) with
DHS.\101\ By executing the MOU, employers agree to abide by lawful
hiring requirements and to follow the E-Verify process to prevent
unauthorized disclosure of personal information and unlawful
discriminatory practices based on national origin or citizenship
status. Specifically, in the MOU, the employer agrees not to use E-
Verify for pre-employment screening of job applicants or in support of
any unlawful employment practice. The employer further agrees to comply
with title VII of the Civil Rights Act of 1964 and section 274B of the
INA, 8 U.S.C. 1324b, by not discriminating unlawfully against any
individual in hiring, firing, employment eligibility verification, or
recruitment or referral practices because of his or her national origin
or citizenship status, or by committing discriminatory documentary
practices. Illegal practices can include selective verification,
improper use of E-Verify, or discharging or refusing to hire an
employee because he or she appears or sounds ``foreign'' or has
received tentative non-confirmations (TNC) or mismatches. The MOU also
makes clear that USCIS may suspend or terminate an employer's access to
E-Verify if the employer violates title VII or section 274B of the INA,
8 U.S.C. 1324b; fails to follow required verification procedures; or
otherwise fails to comply with E-Verify requirements. Any employer who
violates the immigration-related unfair employment practices provisions
in section 274B of the INA, 8 U.S.C. 1324b, could face civil penalties,
including back pay awards. DHS may also immediately suspend or
terminate the MOU, and thereby the employer's participation in E-
Verify, if DHS or the SSA determines that the employer failed to comply
with established E-Verify procedures or requirements. In sum, violation
of the terms of this agreement by the employer is grounds for immediate
termination of its participation in the program.\102\
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\101\ See E-Verify, ``The E-Verify Memorandum of Understanding
for Employers'' (June 1, 2013), <a href="https://www.e-verify.gov/sites/default/files/everify/memos/MOUforEVerifyEmployer.pdf">https://www.e-verify.gov/sites/default/files/everify/memos/MOUforEVerifyEmployer.pdf</a>.
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Employers participating in E-Verify must still complete a Form I-9
for each newly hired employee, as required under current law.\103\
Following completion of Form I-9, the employer must enter the newly
hired worker's information into E-Verify, which then checks that
information against information contained in government databases.\104\
Once an employer enrolls in E-Verify, that employer is responsible for
confirming the employment eligibility of all new hires in E-Verify at
the hiring site(s) for which the employer has chosen to use E-
Verify.\105\ The earliest an employer may use E-Verify with respect to
an alien is after the alien accepts an offer of employment and the
employee and employer complete the Form I-9.\106\ Verification of the
employee's identity and employment authorization and creating the E-
Verify case must be done no later than the end of 3 business days after
the new hire's first day of employment. Generally, E-Verify applies to
new hires only and cannot be used to verify expiring work authorization
of a current employee (including those aliens authorized employment
under the (c)(11), (c)(14), and (c)(18) categories).\107\
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\103\ See E-Verify, ``Account Compliance,'' <a href="https://www.e-verify.gov/employers/monitoring-and-compliance">https://www.e-verify.gov/employers/monitoring-and-compliance</a> (last updated Aug.
20, 2019).
\104\ See id. For example, E-Verify compares employee
information against records in the SSA database and those available
to DHS. Most employees are automatically confirmed as work
authorized. In Fiscal Year 2024 (Oct. 2023-Sept. 2024), the E-Verify
program processed a total of 42,766,806 cases. During this same time
period, 98.49 percent of employees were automatically confirmed as
authorized to work (``work authorized'') either instantly or within
24 hours, requiring no employee or employer action. See E-Verify,
``E-Verify Performance,'' <a href="https://www.e-verify.gov/about-e-verify/e-verify-data/e-verify-performance">https://www.e-verify.gov/about-e-verify/e-verify-data/e-verify-performance</a> (last updated Mar. 14, 2024).
\105\ E-Verify User Manual, Section 1.4. ``Verification
Locations and Hiring Sites,'' <a href="https://www.e-verify.gov/quick-reference-guide-for-e-verify-enrollment-10-introduction/14-verification-locations-and-hiring">https://www.e-verify.gov/quick-reference-guide-for-e-verify-enrollment-10-introduction/14-verification-locations-and-hiring</a> (last updated July 18, 2018).
\106\ ``E-Verify Performance,'' <a href="https://www.e-verify.gov/about-e-verify/e-verify-data/e-verify-performance">https://www.e-verify.gov/about-e-verify/e-verify-data/e-verify-performance</a> (last updated Mar. 14,
2024).
\107\ E-Verify, ``May I Verify an Existing Employee in E-
Verify?'' (Aug. 18, 2023) (stating that only ``federal contractors
with a federal contract that contains the FAR E-Verify clause'' may
verify existing employees), <a href="https://www.e-verify.gov/faq/may-i-verify-an-existing-employee-in-e-verify">https://www.e-verify.gov/faq/may-i-verify-an-existing-employee-in-e-verify</a>.
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E-Verify, which is available in all 50 states, the District of
Columbia, Puerto Rico, Guam, the U.S. Virgin Islands, and the
Commonwealth of the Northern Mariana Islands, is currently the best
means available to electronically confirm employment eligibility. The
program allows employers to confirm the eligibility of their employees
to work in the United States and shows that employers have done their
due diligence by comparing information from an employee's Form I-9,
Employment Eligibility Verification, to records available to DHS and
SSA.
C. Purpose
DHS has determined that the current regulations governing
discretionary employment authorization for aliens who are paroled into
the United States, have been granted deferred action, or have an order
of removal and an order of supervision do not adequately reflect DHS's
enforcement mission and priorities.
Obtaining employment authorization in the United States has long
been, and continues to be, a significant incentive for aliens to
(legally and illegally) migrate to and remain in the United
States.\108\ As such, employment authorization must be carefully
regulated to maintain the integrity of the U.S. immigration system.
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\108\ See, e.g., Elizabeth Jacobs, Center for Immigration
Studies, The Availability of Work Authorization Is a Known `Pull
Factor' for Illegal Immigration and the Submission of Fraudulent
Asylum Claims (Feb. 7, 2024) (``The idea that work authorization
availability serves as a strong incentive for an alien to file a
fraudulent or frivolous asylum application is not a new one.''),
<a href="https://cis.org/Jacobs/Availability-Work-Authorization-Known-Pull-Factor-Illegal-Immigration-and-Submission">https://cis.org/Jacobs/Availability-Work-Authorization-Known-Pull-Factor-Illegal-Immigration-and-Submission</a>.
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1. Strengthening Protections for American Workers
This proposed rule is consistent with the Administration's efforts
to strengthen protections for American workers and minimize the risk of
disadvantaging American workers.
As noted above, E.O. 14159 articulates the Administration's goal
for the federal government to provide for the financial and economic
well-being of U.S. workers. Protecting, strengthening, and developing
the U.S. workforce is critical to establishing economic security,
[[Page 34377]]
stability, and growth for American workers. This proposed rule aligns
with these goals by limiting participation in the U.S. labor force to
aliens who warrant employment authorization, thereby creating more
opportunities for American workers to join or re-join the labor force.
Indeed, studies have shown that immigration adversely impacts native
workers through negative effects on wages along with employment
opportunities in the short-term,\109\ with the adverse impacts
typically, if not predominantly, borne by under-skilled or minority
native workers.\110\ This proposed rule will mitigate these adverse
impacts because it is possible that some aliens who would have received
employment authorization under the (c)(11), (c)(14), and (c)(18)
categories in the absence of this rule may compete for and potentially
occupy jobs that American workers might have otherwise acquired.
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\109\ See, e.g., The Economic and Fiscal Consequences of
Immigration, National Academies of Sciences, Engineering, and
Medicine, Francine D. Blau and Christopher Mackie, Eds. National
Academies Press, 2017 at 267 (``Another regularity consistent with
theory is that there are larger negative effects on native wages
from immigrant inflows in the short run (i.e., in studies of the
immediate impacts of abrupt immigrant inflows or in which inflows
are observed over shorter periods of time, or in the case of the
structural studies, when capital is assumed fixed).
\110\ Id. at 241 (``Some notable patterns emerge. Confirming
expectations based on economic theory about which groups are most
negatively affected by immigration, native dropouts tend to be more
negatively affected than better-educated natives (as indicated by
comparing results for dropouts with the overall results for all
workers or all men or women). The results in the table also suggest
that this negative effect may be compounded for native
minorities.'').
---------------------------------------------------------------------------
In addition to the Administration's goal of protecting workers,
this proposed rule is also part of a broader initiative by the
President to modernize, strengthen, and revitalize the American
workforce at all levels. For example, E.O. 14278, Preparing Americans
for High-Paying Skilled Trade Jobs of the Future,\111\ espouses the
overarching commitment to ``equip American workers to fill the growing
demand for skilled trades and other occupations'' by, among other
things, developing ``[o]pportunities to integrate systems and realign
resources to address critical workforce needs and in-demand skills of
emerging industries and companies investing in the United States.''
E.O. 14278, secs. 2, 3(a). Relatedly, in America First Trade Policy,
the President articulated his goal of ``establishing a robust and
reinvigorated trade policy that promotes investment and productivity,
enhances our Nation's industrial and technological advantages, defends
our economic and national security, and--above all--benefits American
workers, manufacturers, farmers, ranchers, entrepreneurs, and
businesses.\112\ These pronouncements embody the President's
overarching goal of developing and bolstering opportunities for
American workers of all levels. This proposed rule, thus, represents,
one part of this larger initiative and broad array of policies to
strengthen protections for American workers.
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\111\ 90 FR 17525 (Apr. 28, 2025).
\112\ 90 FR 8471 (Jan. 30, 2025).
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2. Aliens With Final Orders of Removal
a. Immigration Enforcement
Enforcement of the nation's immigration laws is essential to the
integrity of the immigration system, as it ensures that only those who
are legally qualified and lawfully in the United States are allowed to
avail themselves of any benefits under the INA. In 1996, Congress
passed the Anti-Terrorism and Effective Death Penalty Act (AEDPA),
Public Law 104-132, title IV; 110 Stat. 1214 (Apr. 24, 1996) and the
IIRIRA, Public Law 104-208, div. C; 110 Stat. 3009 (Sept. 28, 1996).
AEDPA and IIRIRA made sweeping changes to U.S. immigration laws
focusing on immigration enforcement, detention of aliens, and bars to
certain types of relief, protection from removal, and grants of legal
status. IIRIRA expanded the Attorney General's (now Secretary's)
authority to detain aliens, including requiring mandatory detention of
aliens convicted of aggravated felony offenses and the detention of
aliens pending removal from the United States. It also created an
expedited removal process for aliens who do not have proper documents
or who make material misrepresentations and who are arriving in the
United States, or, as designated by the Secretary, aliens who have not
been inspected and admitted or paroled into the United States and
cannot prove continuous presence in the United States for at least 2
years.\113\ By passing AEDPA and IIRIRA, Congress made clear that
enforcement of the immigration laws is a priority and is critical for
purposes of national security, public safety, and the integrity of the
U.S. immigration system.
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\113\ See INA sec. 235(b)(1), 8 U.S.C. 1225(b)(1).
---------------------------------------------------------------------------
However, DHS is not always able to promptly remove aliens with
final orders of removal. Sections 241(a)(1) and (2) of the INA, 8
U.S.C. 1231(a)(1) and (2), provide for a 90-day removal period in which
the Secretary is authorized to detain the alien and within which the
Secretary shall remove the alien. However, the removal of aliens from
the United States and repatriation to their home countries can be a
difficult and time-consuming process that can be further complicated by
legal appeals or impeded by a lack of sufficient agency resources.
Delays in removal can also occur because some countries unreasonably
delay the issuance of travel documents or unreasonably delay accepting
the repatriation of their nationals.
Although DHS has authority to detain aliens with final orders of
removal during the removal period, if DHS cannot effectuate an alien's
removal in a 6-month period, DHS must generally release such aliens
from detention.\114\ Based on data on removals executed by DHS, it may
take DHS 6 months or longer to obtain travel documents and remove an
alien from the United States.\115\ As stated above, based on 2019
removal data, it takes DHS an average of 187.19 days, roughly 6 months,
to obtain travel documents and remove an alien from the United States.
However, this length of time can change due to a number of factors such
as significant changes in migration, priority shifts, country
agreements, backlogs, advances in technology, delivery methods, and
security concerns. Due to the decision in Zadvydas, DHS has had to
release thousands of aliens from immigration detention as illustrated
in the table below, including aliens convicted of aggravated felonies
and other serious crimes.
---------------------------------------------------------------------------
\114\ See generally Zadvydas, 533 U.S. 678 (recognizing a six-
month period of detention to be presumptively reasonable for aliens
with final orders of removal).
\115\ Office of Inspector General, DHS, ``ICE Faces Barriers in
Timely Repatriation of Detained Aliens'' (Mar. 11, 2019), Table 2,
<a href="https://www.oig.dhs.gov/sites/default/files/assets/2019-03/OIG-19-28-Mar19.pdf">https://www.oig.dhs.gov/sites/default/files/assets/2019-03/OIG-19-28-Mar19.pdf</a>. Please note, this is the most recent data available.
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[[Page 34378]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.011
When aliens with final orders of removal are released from DHS
custody, the aliens are released under an order of supervision, which
contains conditions for release, such as requiring aliens to assist
with efforts to procure travel documents and present themselves for
removal in the event removal can be arranged. Once temporarily released
on an order of supervision, an alien may apply for employment
authorization under 8 CFR 274a.12(c)(18). Each year, USCIS approves
thousands of initial requests for employment authorization and renewals
of such authorization for aliens released from DHS custody on an OSUP,
as shown in Table III.2.
[GRAPHIC] [TIFF OMITTED] TP05JN26.012
As noted above, E.O. 14159 made the successful enforcement of final
orders of removal a priority for the Administration and directed the
Secretary to take all appropriate action to ensure the faithful
execution of immigration laws and to promptly revoke any memoranda,
guidance, policy, or action that is inconsistent with the objectives
espoused in E.O. 14159. Consistent with the above, DHS examined the
current regulation at 8 CFR 274a.12(c)(18) governing employment
eligibility for aliens with a final removal order and temporarily
released on OSUP. DHS determined that this regulation is inconsistent
with the Administration's enforcement priorities because it allows
aliens temporarily released on an order of supervision to qualify for
employment authorization
[[Page 34379]]
and, as such, incentivizes such aliens to remain in the United States
instead of complying with their removal order and departing the United
States.
The current regulation at 8 CFR 241.5(c) largely restates the
language of section 241(a)(7) of the INA, 8 U.S.C. 1231(a)(7),\116\ and
also does not clearly place the burden on the alien to establish that
he or she warrants a favorable exercise of discretion to obtain
employment authorization. It also does not require an alien who has a
final order of removal and has been temporarily released on an order of
supervision to establish on what basis he or she is seeking employment
authorization, either under section 241(a)(7)(A) of the INA, 8 U.S.C.
1231(a)(7)(A), because every country designated by the alien or
described in section 241(b) of the INA, 8 U.S.C. 1231(b) has refused to
receive the alien, or under section 241(a)(7)(B) of the INA, 8 U.S.C.
1231(a)(7)(B), because removal is impracticable or against the public
interest. Proposed 8 CFR 274a.12(c)(18) clarifies that the burden is on
the alien, not the U.S. Government, to establish that he or she is
eligible for a discretionary benefit. Further, DHS is now proposing to
clearly indicate that an alien applying for employment authorization
under the (c)(18) category must provide a completed ICE Form I-220B,
Order of Supervision indicating that DHS determined the alien could not
be removed because every country identified by the U.S. government as
an alternate country of removal, and every country the U.S. government
has asked to accept the alien, has failed to provide the appropriate
travel documents. See proposed 8 CFR 274a.13(a)(3)(iii). This change is
being made to clarify that DHS makes the determination if an alien's
removal is impracticable or contrary to the public interest, and the
alien must submit a completed I-220B reflecting this determination.
---------------------------------------------------------------------------
\116\ The Department notes that current 8 CFR 241.5(c)(1)--that
an officer may grant employment authorization if ``the alien cannot
be removed in a timely manner''--does not directly mirror INA
241(a)(7)(A), 8 U.S.C. 1231(a)(7)(A) (``No alien ordered removed
shall be eligible . . . unless the Attorney General makes a specific
finding that--(A) the alien cannot be removed due to the refusal of
all countries designated by the alien or under this section to
receive the alien''). The Department believes the changes made to 8
CFR 274a.12(c)(18)--providing that an alien is eligible for work
authorization under this category only if all countries from which
DHS requested travel documents have failed to issue such documents--
is more closely aligned with INA 241(a)(7)(A).
---------------------------------------------------------------------------
DHS has determined that granting employment authorization to aliens
who have final orders of removal and are released on OSUP, except in
very limited circumstances, undermines the removal scheme created by
Congress and incentivizes such aliens to remain in the United States
instead of complying with their removal orders, working with the
country of removal to obtain travel documents in a timely manner, and
departing the United States. DHS's proposed changes will encourage
aliens to obtain travel documents in a timely manner and depart the
United States as ordered. The revisions proposed under this rule will
address these concerns and align the grant of employment authorization
with the Administration's enforcement priorities.
b. Exception to Employment Authorization Bars
DHS recognizes that there are certain times an alien cannot be
removed from the United States because DHS is unable to obtain travel
documents from a country of removal. Therefore, DHS is proposing to
create a narrow exception to the bar to employment authorization. DHS
will continue to allow aliens who are subject to a final order of
removal and released on an order of supervision to apply for
discretionary employment authorization, if: (1) the alien is complying
with the conditions of release described in their order of supervision,
(2) DHS has determined that the alien's removal is impracticable,
either at the time of the alien's release from custody or at the time
the alien checks in with ICE as scheduled and required by the terms of
the alien's order of supervision, because all countries from which DHS
has requested travel documents at that time have failed to issue such
documents, (3) the alien establishes economic necessity, and (4) DHS
determines that the alien otherwise warrants a favorable exercise of
discretion for a grant of employment authorization.
DHS anticipates that the number of aliens who are subject to a
final order of removal for whom DHS has determined that their removal
is impracticable will be relatively small. For example, in FY 2024,
only 120 aliens who were temporarily released from ICE custody on OSUP
could not be removed in that fiscal year due to DHS's inability to
obtain travel documents during the fiscal year in which the aliens were
counted (Table III.3). DHS estimates this proposed rule would result in
an annual average of 322 aliens temporarily released from ICE custody
on OSUP remaining eligible for employment authorization under the
exception.
[[Page 34380]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.013
As reflected in Table III.3, the number of aliens who would qualify
for this exception should remain small because even after an alien is
temporarily released on OSUP, DHS continues to work with the
appropriate foreign governments to obtain travel documents, and DHS
sometimes receives travel documents for such aliens shortly after their
release or within the following fiscal year. As the 10-year average was
322 aliens, and no single year was above 660 aliens, DHS anticipates
that the number will remain relatively small.
Finally, allowing aliens who fall within the exception to be
eligible for employment authorization is consistent with section
241(a)(7) of the INA, 8 U.S.C. 1231(a)(7). Section 241(a)(7) bars
employment authorization for aliens who have been ordered removed,
unless certain conditions are met. No alien subject to a final order of
removal has a right to apply for or obtain employment authorization
from USCIS, and Congress made this clear when it enacted section 241 as
part of IIRIRA and stated that none of the provisions of this section
create any substantive or procedural right or benefit. See INA sec.
241(h), 8 U.S.C. 1231(h).\117\ Section 241(a)(7) of the INA, 8 U.S.C
1231(a)(7), however, gives the Secretary discretionary authority to
grant employment authorization if the Secretary determines, in his or
her sole and unreviewable discretion, that: (1) an alien cannot be
removed from the United States because all countries of removal as
designated by the alien or delineated under section 241 of the INA, 8
U.S.C. 1231, have declined to receive the alien, or (2) the alien's
removal is otherwise impracticable or contrary to the public interest.
INA sec. 241(a)(7)(A) and (B), 8 U.S.C. 1231(a)(7)(A) and (B). The
negative framing of the statute, that no alien shall be eligible for
employment authorization unless certain conditions are met,
demonstrates that these conditions are necessary, not sufficient, for
eligibility. The Secretary is thus not required to make a finding under
either INA 241(a)(7)(A) (an alien cannot be removed due to the refusal
of all countries designated by the alien or under this section to
receive the alien) or (B) (the alien's removal is ``otherwise
impracticable or contrary to the public interest''). See INA sec.
241(a)(7)(A), (B), 8 U.S.C. 1231(a)(7)(A), (B). Similarly, the
Secretary is not required to make a specific finding under either
clause of subparagraph (B). The Secretary can choose to maintain the
permanent bar on employment authorization for all aliens subject to a
final order of removal or otherwise establish reasonable requirements.
---------------------------------------------------------------------------
\117\ Section 241(h) of the INA, 8 U.S.C. 1231(h), specifically
states ``(h) Statutory construction.--Nothing in this section shall
be construed to create any substantive or procedural right or
benefit that is legally enforceable by any party against the United
States or its agencies or officers or any other person.''
---------------------------------------------------------------------------
In this rulemaking, DHS is not making any determination under
subparagraph (A) of section 241(a)(7) of the INA, 8 U.S.C. 1231(a)(7).
Such a determination is not necessary or required. Making such a
determination would be inconsistent with the Administration's
enforcement priorities. DHS works to ensure that all aliens who have a
final order of removal will eventually be subject to removal from the
United States, either, consistent with its non-refoulement obligations:
to a country where the alien is a citizen, subject, or national; to a
country where the alien was born or the alien has a residence; or to
any country that is willing to accept the alien.
DHS also is not making any determinations based on the ``public
interest'' clause of subparagraph (B) of section 241(a)(7) of the INA,
8 U.S.C. 1231(a)(7)(B), because there are already sufficient alternate
avenues available for aliens whom DHS has determined that it is in the
public's interest for them to remain temporarily in the United States
and receive employment authorization. The text of section 241(a)(7)(B)
of the INA, 8 U.S.C. 1231(a)(7)(B) is written in the disjunctive and,
as such, the two clauses in subparagraph (B) are separate and can be
analyzed separate and apart from each other.\118\ For example, when an
alien with a final order of removal is assisting law enforcement
entities, and the alien's removal is contrary to the public interest
because of such assistance, there are avenues for such an alien to
qualify for employment authorization, in part, based on his or
[[Page 34381]]
her assistance to law enforcement, not based on ``public interest''
under section 241(a)(7)(B). Aliens assisting law enforcement may
qualify for employment authorization if the aliens are eligible for T
nonimmigrant status (trafficking victims),\119\ U nonimmigrant status
(victims of qualifying criminal activity),\120\ or S nonimmigrant
status (witnesses in criminal investigations or prosecutions),\121\ or
are granted continued presence (temporary immigration designation for
certain trafficking victims),\122\ deferred action, or parole under
section 212(d)(5) of the INA, 8 U.S.C. 1182(d)(5). These existing
avenues reflect the public interest in strengthening cooperation with
law enforcement and provide DHS with the appropriate framework to
assess the nature of the alien's assistance to law enforcement.
---------------------------------------------------------------------------
\118\ See, e.g., Reiter v. Sonotone Corp., 442 U.S. 330, 339
(1979) (``Canons of construction ordinarily suggest that terms
connected by a disjunctive be given separate meanings, unless the
context dictates otherwise; here it does not.'') (citations
omitted).
\119\ See INA sec. 101(a)(15)(T), 8 U.S.C. 1101(a)(15)(T)
(eligibility requirements include compliance with any reasonable
request from a law enforcement agency for assistance in the
investigation or prosecution of human trafficking).
\120\ See INA sec. 101(a)(15)(U), 8 U.S.C. 1101(a)(15)(U)
(eligibility requirements include helpfulness to law enforcement in
the investigation or prosecution of a qualifying crime).
\121\ See INA sec. 101(a)(15)(S), 8 U.S.C. 1101(a)(15)(S)
(eligibility requirements include providing law enforcement
critical, reliable information necessary to the successful
investigation or prosecution of a criminal organization).
\122\ See 22 U.S.C. 7105(c)(3); 28 CFR 1100.35 (Federal law
enforcement official must determine the alien is a victim of a
severe form of trafficking and may be a potential witness to such
trafficking).
---------------------------------------------------------------------------
Therefore, except for aliens for whom the Secretary has made a
finding under the impracticability clause of section 241(a)(7)(B) of
the INA, 8 U.S.C. 1231(a)(7)(B), no alien with a final order of removal
who has been temporarily released on an order of supervision will be
eligible for employment authorization. This includes aliens who may
have previously been eligible for employment authorization based on the
refusal of countries to receive the alien under section 241(a)(7)(A) of
the INA, 8 U.S.C. 1231(a)(7)(A), or the public interest clause of
section 241(a)(7)(B) of the INA, 8 U.S.C. 1231(a)(7)(B). Furthermore,
for purposes of determining employment authorization eligibility only,
DHS clarifies that an alien's removal is ``otherwise impracticable''
under section 241(a)(7)(B) of the INA, 8 U.S.C. 1231(a)(7)(B), when DHS
determines that all countries from which DHS has currently requested
travel documents have failed to issue a travel document.
It is the Administration's policy to ensure the prompt removal of
aliens who have been issued a final order of removal. ICE works to
promptly remove aliens subject to a final order of removal from the
United States. Removal operations require integrated coordination,
management, and facilitation efforts. The removal of aliens subject to
final orders of removal is a national security priority for the United
States, highlighted by section 4 of E.O. 14159, making it a priority to
ensure ``the successful enforcement of final orders of removal.'' \123\
E.O. 14159 also notes that the enforcement of our immigration laws is
critically important to the national security and public safety of the
United States. The continued presence in the United States of aliens
with final orders of removal, many of whom are criminals who have
served time in our Federal, State, and local prisons and who have been,
in general, determined in immigration proceedings to be ineligible to
remain in the country, is contrary to the national interest. For this
reason, E.O. 14159 directed the Secretary to take all appropriate
action to enable the heads of ICE, CBP, and USCIS to set priorities for
their agencies that protect the public safety and national security
interests of the American people, including by ensuring the successful
enforcement of final orders of removal. E.O. 14159 also directed the
Secretary to rescind the policy decisions that led to the increased or
continued unauthorized presence of illegal aliens in the United States
and to align all departmental activities with the policies set out by
E.O. 14159.
---------------------------------------------------------------------------
\123\ See E.O. 14159, Protecting the American People Against
Invasion, 90 FR 8443 (Jan. 29, 2025).
---------------------------------------------------------------------------
Aliens with final orders of removal who are released from ICE
custody under section 241(a)(3) of the INA, 8 U.S.C. 1231(a)(3), are
subject to supervision.\124\ The supervision is effectuated through ICE
Form I-220B, Order of Supervision. Conditions for release typically
include regular check-ins with ICE; making good faith efforts to obtain
travel documents and travel arrangements; not associating with gangs,
criminals, or engaging in criminal activity; and participating in
requisite rehabilitative treatment programs.
---------------------------------------------------------------------------
\124\ When releasing on OSUP an alien who has been ordered
removed, ICE is not necessarily determining that all applicable
foreign countries are refusing to accept the alien. ICE's efforts to
effectuate removal are always ongoing, and even after an alien is
temporarily released on OSUP, ICE may return the alien to custody
and remove the alien from the United States.
---------------------------------------------------------------------------
DHS has identified that granting employment authorization to aliens
with final removal orders and released on OSUP exacerbates the
challenges in effectuating removal by incentivizing such aliens to
remain in the United States and possibly compete for jobs against
American workers, instead of complying with their removal orders,
working with the country of removal to obtain travel documents in a
timely manner, and departing the United States.
DHS currently extends eligibility for employment authorization
under 8 CFR 274a.12(c)(18) to aliens who have been ordered removed and
have been temporarily released from detention under section 241(a)(3)
of the INA, 8 U.S.C. 1231(a)(3), on an order of supervision
(colloquially referred to as the ``(c)(18) EAD''). See 8 CFR
274a.12(c)(18); see also 8 CFR 241.5(c). To apply for employment
authorization, the alien must currently file a Form I-765 accompanied
by required documentation and the proper fee. Required documentation
for a (c)(18) EAD currently includes a copy of the order of removal and
the order of supervision. USCIS requires aliens temporarily released on
OSUP to submit biometrics and pay the associated fee, if applicable, as
part of their initial or renewal employment authorization application.
If USCIS issues the alien a (c)(18) EAD, it is valid for 1 year,\125\
and USCIS mails an EAD according to the mailing preferences indicated
by the alien. To renew an alien's (c)(18) employment authorization, an
alien must file Form I-765, accompanied by required documentation,
biometrics and the proper fees, to demonstrate that he or she remains
on an order of supervision and continues to comply with it. USCIS may,
in its discretion, deny an application regardless of eligibility. If
USCIS denies the Form I-765 application, the agency sends a written
notice to the alien explaining the basis for denial.
---------------------------------------------------------------------------
\125\ All initial and renewal EADs issued under category (c)(18)
are currently valid for 1 year upon issuance. Replacement EAD cards
are issued for the same dates as the previous card that would have
had a validity period of 1 year.
---------------------------------------------------------------------------
DHS is proposing to require aliens who qualify for employment
authorization under the narrow exception to the general bar to
employment authorization under proposed 8 CFR 274a.12(c)(18) to
establish an economic necessity for employment during the period the
aliens are on OSUP. DHS proposes to revise the current list of factors
it considers as a matter of discretion when adjudicating such
applications for employment authorization to a list of requirements
that an alien must now establish, including: the alien's compliance
with the conditions for release; that DHS has determined the alien's
removal is impracticable because
[[Page 34382]]
all countries from which DHS requested travel documents have failed to
issue such documents; the alien establishes an economic necessity to be
employed; and the alien warrants a favorable exercise of discretion.
DHS also proposes to clarify that an alien may demonstrate an economic
necessity for employment by demonstrating that he or she is a primary
provider of economic support for a dependent U.S. citizen, lawful
permanent resident, or lawfully present child(ren), spouse, or
parent(s).
3. Aliens Who Have Received a Grant of Deferral of Removal Under the
Regulations Implementing CAT Article 3
Aliens who have received a grant of deferral of removal under CAT,
as described in 8 CFR 208.17 and 1208.17, and are released from custody
under an order of supervision would be eligible for employment
authorization pursuant to 8 CFR 274a.12(c)(18). USCIS would only grant
authorization under 8 CFR 274a.12(c)(18) if the alien meets the
eligibility criteria described in 8 CFR 274a.12(c)(18) and the alien
also warrants a favorable exercise of discretion. As discussed above,
aliens applying for employment authorization under the (c)(18) category
must provide a completed ICE Form I-220B, Order of Supervision
indicating that DHS determined the alien could not be removed because
every country identified by the U.S. government as an alternate country
of removal, and every country the U.S. government has asked to accept
the alien, has failed to provide the appropriate travel documents. See
proposed 8 CFR 274a.13(a)(3)(iii). Employment authorization will not be
automatic for this population of aliens and USCIS retains the authority
and discretion to determine their eligibility for EAD.
4. Aliens Paroled Into the United States
As noted above, parole is a temporary action, taken by the
Secretary in the Secretary's discretion, to allow an alien who is
inadmissible to temporarily enter or remain in the United States, based
on urgent humanitarian reasons or a significant public benefit. This
discretion is not meant to circumvent the normal process for legal
immigration to the United States. The Secretary's decision to exercise
discretion to temporarily parole an alien into the United States also
does not create any substantive rights or confer a lawful status to
such aliens and can be terminated at any time.
With some exceptions, DHS currently extends eligibility for
employment authorization under 8 CFR 274a.12(c)(11) to aliens who have
been paroled into the United States temporarily for urgent humanitarian
reasons or significant public benefit pursuant to section 212(d)(5) of
the INA, 8 U.S.C. 1182(d)(5) (colloquially referred to as the ``(c)(11)
EAD'').\126\ To apply for a (c)(11) EAD, an alien must file a Form I-
765 accompanied by required documentation and the proper fee (if
applicable).\127\ The required documentation to establish eligibility
for a (c)(11) EAD includes a copy of the alien's valid, unexpired Form
I-94, passport, or other travel document showing he or she was paroled
into the United States for urgent humanitarian reasons or significant
public benefit. If USCIS approves the alien's application, an EAD is
issued with a validity period of 1 year or for the duration of the
alien's parole, whichever is shorter, and mailed according to the
mailing preferences indicated by the alien.\128\ USCIS may, in its
discretion, deny an application regardless of eligibility. If USCIS
denies the Form I-765, the agency sends written notice to the alien
explaining the basis for denial pursuant to 8 CFR 274a.13(c).
---------------------------------------------------------------------------
\126\ There are some exceptions to eligibility for employment
authorization for individuals paroled into the United States. See,
e.g., 8 CFR 212.19(h)(4) (a child of an entrepreneur parolee is not
employment authorized). Further, in 2022, DHS and the Department of
Justice adopted an interim final rule that added new paragraphs 8
CFR 235.3(b)(2)(iii) and (b)(4)(ii), clarifying that ``parole'' for
aliens in expedited removal or during periods of detention pending a
credible fear interview would be for the limited purpose of parole
out of custody and would not serve as an independent basis for
employment authorization. Procedures for Credible Fear Screening and
Consideration of Asylum, Withholding of Removal, and CAT Protection
Claims by Asylum Officers, 87 FR 18078 (Mar. 29, 2022); see 8 CFR
235.3(b)(2)(iii) (a grant of parole for an alien in expedited
removal is for the limited purpose of parole out of custody, and
does not serve as a basis for employment authorization) and 8 CFR
235.3(b)(4)(ii) (parole of aliens pending credible fear
determination is for limited purpose of parole out of custody, and
does not serve as a basis for employment authorization).
\127\ Not all categories of (c)(11) EADs require a fee. For
example, (c)(11) EADs for Special Parole processes for Immigrant
Military Members and Veterans Initiative, where the alien is a
current or former U.S. armed forces service member, do not have a
fee. For additional information, see G-1055, Fee Schedule, <a href="https://www.uscis.gov/sites/default/files/document/forms/g-1055.pdf">https://www.uscis.gov/sites/default/files/document/forms/g-1055.pdf</a>.
\128\ See Section 100003(b)(1) of One Big Beautiful Bill Act
(also known as ``H.R. 1''), Immigration and Law Enforcement Matters,
Part I, Title X of Public Law 119-21, 139 Stat. 72 (July 4, 2025). 8
U.S.C. 1803(b)(1) (requiring new immigration fees and defining the
validity period for initial employment authorization of parolees to
a period of 1 year or for the duration of the alien's parole,
whichever is shorter.); 90 FR 34511 (July 22, 2025) (USCIS notice
announcing the new fees required by HR-1); ``USCIS Updates Fees
Based on H.R.1'' (release date July 18, 2025), <a href="https://www.uscis.gov/newsroom/alerts/uscis-updates-fees-based-on-hr-1">https://www.uscis.gov/newsroom/alerts/uscis-updates-fees-based-on-hr-1</a> (last
viewed on July 28, 2025). For EADs issued prior to July 22, 2025,
the date of the USCIS Federal Register notice announcing the new HR-
1 fees, parole-based EADs were generally valid for the duration of
the parole period.
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Due to the temporary nature of parole, DHS has determined that
employment authorization based on parole should be further limited to
better align with the Administration's current immigration enforcement
priorities, including those outlined in E.O. 14159, and efforts to
strengthen protections for American workers. Moreover, it is in the
best interests of the American public to limit competition between U.S.
citizens and aliens for available jobs. Limiting employment
authorization for aliens minimizes any disadvantages currently faced by
U.S. citizens who are on the job market and increases the availability
of jobs filled by aliens in similar occupations, industries, and
geographic regions, such as jobs currently held by the parolees who
filed the 1,211,447 approved (c)(11)-based I-765s (initial and
renewals) between FY2021 and FY2024.\129\ DHS further wants to ensure
that aliens who are in the United States for a temporary period of
time, such as those who are temporarily paroled into the United States
for urgent humanitarian reasons or significant public benefit, warrant
a grant of employment authorization. Therefore, DHS proposes to amend 8
CFR 274a.12(c)(11) to require aliens applying for employment
authorization under 8 CFR 274a.12(c)(11) to establish an economic
necessity for employment and to demonstrate that the alien warrants a
favorable exercise of discretion. The types of documentation that may
be used to establish an economic necessity to be employed will be
provided in form instructions and other sub-regulatory guidance. DHS
also proposes to add a requirement that aliens seeking to renew
employment authorization under this category be employed by, or be
seeking employment with, a U.S. employer who is a participant in good
standing in E-Verify.
---------------------------------------------------------------------------
\129\ For more information, please see Table V.16: Total Annual
Form I-765 (c)(11) Filings Receipts and Approvals, FY 2015 through
FY 2024.
---------------------------------------------------------------------------
DHS also wants to ensure that parolees establish a need for
employment authorization, that any decision to grant employment
authorization is based upon that need, and that such a grant of
employment authorization is consistent with the reason for granting
parole. While DHS may have exercised its discretion to grant an alien
parole for urgent humanitarian reasons or significant public benefit,
the reasons for granting parole may not necessarily serve as the basis
for a grant of employment
[[Page 34383]]
authorization. The adjudication of the request for employment
authorization based on a grant of parole is intended to be a separate
decision wherein the discretionary factors related to the request for
employment authorization are weighed against each other on their own
and not against those that were weighed against each other when
granting parole, while noting that many of the discretionary factors
between the two may be the same and carry similar positive or negative
weight.
DHS is also proposing to amend 8 CFR 274a.12(c)(11) to conform with
8 CFR 235.3(b)(2)(iii) (detention and parole of aliens in expedited
removal) and 235.3(b)(4)(ii) (detention of aliens pending credible fear
interview) which state that such grants of parole are for the limited
purpose of parole out of custody and cannot serve as an independent
basis for employment authorization under 8 CFR 274a.12(c)(11).\130\
Accordingly, for ease of reference and clarity, DHS is proposing to add
this clarification to the 8 CFR 274a.12(c)(11) category itself.
---------------------------------------------------------------------------
\130\ As explained above, DHS and the Department of Justice
adopted an interim final rule in 2022 that added new paragraphs 8
CFR 235.3(b)(2)(iii) and (b)(4)(ii), clarifying that ``parole'' for
aliens in expedited removal or during periods of detention pending a
credible fear interview would be for the limited purpose of parole
out of custody and would not serve as an independent basis for
employment authorization. 87 FR 18078; see 8 CFR 235.3(b)(2)(iii) (a
grant of parole for an alien in expedited removal is for the limited
purpose of parole out of custody, and does not serve as a basis for
employment authorization); see also 8 CFR 235.3(b)(4)(ii) (parole of
aliens pending credible fear determination is for limited purpose of
parole out of custody, and does not serve as a basis for employment
authorization).
---------------------------------------------------------------------------
5. Aliens Granted Deferred Action
Unlike parole, deferred action was not created by statute and is
not specifically defined in the INA; however, as discussed above, the
authority not to execute an enforcement action is a quintessential
feature of the Secretary's immigration enforcement powers.\131\ Despite
the lack of direct statutory authority for deferred action, Congress
has acknowledged its use and, on several occasions, has referenced
deferred action as an interim form of enforcement discretion, as
discussed above.
---------------------------------------------------------------------------
\131\ See, e.g., Heckler, 470 U.S. 831.
---------------------------------------------------------------------------
DHS recognizes that there are some unique cases or compelling
situations that may warrant granting an alien deferred action. Deciding
whether to grant deferred action involves a review of an alien's
circumstances, weighing positive and negative discretionary factors,
and considering the totality of the circumstances. DHS will continue to
use deferred action on a case-by-case basis to address compelling
humanitarian circumstances, further a specific policy goal, or act as a
bridge until specific legislative action can provide permanent relief.
DHS will also continue to use deferred action as a temporary measure
for administrative convenience, especially considering limited
resources.
Whether aliens granted deferred action should be employment
authorized, however, is a separate policy determination that is
grounded in the Secretary's discretionary authority to grant employment
authorization under sections 103(a) and 274a(h)(3) of the INA, 8 U.S.C.
1103(a) and 1374a(h)(3).
As with employment authorization based on a grant of parole, DHS
also wants to ensure that any decision to grant employment
authorization based upon a grant of deferred action is based upon the
need for employment authorization and that such a grant of employment
authorization is consistent with the reason for deferred action. While
DHS may have exercised its discretion to grant deferred action, the
reasons for granting deferred action may not necessarily serve as the
same basis for a grant of employment authorization. The adjudication of
the request for employment authorization based on a grant of deferred
action is intended to be a separate decision wherein the discretionary
factors related to the request for employment authorization are weighed
against each other on their own and not against the factors that were
weighed against each other when granting deferred action, while noting
that many of the discretionary factors between the two may be the same
and carry similar positive or negative weight.
DHS currently extends eligibility for employment authorization
under 8 CFR 274a.12(c)(14) to aliens who have been granted deferred
action, if the alien establishes an economic necessity for employment
(colloquially referred to as the ``(c)(14) EAD''). For such aliens to
obtain employment authorization, they must file a Form I-765
accompanied by required documentation and the proper fee (if
applicable).\132\ The required documentation to establish eligibility
for employment authorization under 8 CFR 274a.12(c)(14) includes a copy
of the alien's order, notice, or other document reflecting the grant of
deferred action and proof that he or she has an economic necessity to
work. USCIS considers whether an alien granted deferred action has an
economic necessity to work by reviewing the alien's current annual
income, current annual expenses, and the total current value of his or
her assets.\133\ The alien is instructed to provide this financial
information on Form I-765WS, Form I-765 Worksheet.
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\132\ For additional information, see USCIS, DHS, ``Fee
Schedule,'' G-1055 (Apr. 3, 2025), <a href="https://www.uscis.gov/sites/default/files/document/forms/g-1055.pdf">https://www.uscis.gov/sites/default/files/document/forms/g-1055.pdf</a>.
\133\ See 8 CFR 274a.12(e).
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If USCIS approves the alien's application for a (c)(14) EAD, it is
generally valid for the duration of the period of deferred action and
is mailed according to the mailing preferences indicated by the alien.
USCIS may, in its discretion, deny an application regardless of
eligibility. If USCIS denies the Form I-765, the agency sends a written
notice to the alien explaining the basis for denial pursuant to 8 CFR
274a.13(c).
DHS has determined that employment authorization should be further
limited to better align with the DHS enforcement mission and the
Administration's current immigration enforcement priorities, including
those outlined in E.O. 14159. For example, E.O. 14159 expressly states
that ``It is the policy of the United States to faithfully execute the
immigration laws against all inadmissible and removable aliens,
particularly those aliens who threaten the safety or security of the
American people[,]'' and it requires DHS ``to set priorities for their
agencies that protect the public safety and national security interests
of the American people, including by ensuring the successful
enforcement of final orders of removal.'' In addition, the E.O. compels
DHS to ``promptly take all appropriate action, consistent with law, to
rescind the policy decisions of the previous administration that led to
the increased or continued presence of illegal aliens in the United
States, and align any and all departmental activities with the policies
set out by this order and the immigration laws[,]'' and ``ensur[e] that
employment authorization is provided in a manner consistent with
section 274A of the INA (8 U.S.C. 1324a), and that employment
authorization is not provided to any unauthorized alien in the United
States.'' Limiting employment authorization for aliens granted deferred
action who have significant negative discretionary factors is
consistent with the enforcement priorities enumerated in E.O. 14159.
In addition, Executive Order 14161, ``Protecting the United States
From Foreign Terrorists and Other National Security and Public Safety
Threats'',
[[Page 34384]]
requires DHS to ``vet and screen to the maximum degree possible all
aliens who intend to be admitted, enter, or are already inside the
United States, particularly those aliens coming from regions or nations
with identified security risks.''
Therefore, to promote clarity, DHS is proposing to amend 8 CFR
274a.12(c)(14) to emphasize the requirement that aliens applying for
employment authorization based on a grant of deferred action must
establish economic necessity for employment and that the alien warrants
a favorable exercise of discretion, consistent with the priorities laid
out above. Also consistent with the above, DHS is proposing to amend 8
CFR 274a.12(c)(14) to limit employment authorization to a period not to
exceed one year.
In addition, DHS also proposes to add a requirement that aliens who
were granted initial employment authorization under 8 CFR
274a.12(c)(14) be employed by or seeking employment with a U.S.
employer who is a participant in good standing in E-Verify to be
eligible for a renewal of their employment authorization based on this
category.
IV. Discussion of Proposed Rule
A. Discretionary Employment Authorization Generally
DHS is proposing to revise several provisions in title 8 of the CFR
to emphasize and clarify how DHS will exercise its inherent
discretionary authority to grant employment authorization.
Many immigration benefits require an alien to demonstrate that the
request warrants a favorable exercise of discretion in order to receive
the benefit.\134\ For these benefits, a discretionary analysis is a
separate, additional component of adjudicating the benefit request. An
immigration officer typically determines whether to favorably exercise
discretion after first determining that the alien meets all applicable
threshold eligibility requirements.
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\134\ See, e.g., Matter of Patel, 17 I&N Dec. 597 (BIA 1980)
(discussing discretionary aspect of adjustment of status
adjudications).
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The discretionary analysis involves the review of all relevant,
specific facts and circumstances in an individual case. However, there
are limitations on how the officer may exercise discretion; the officer
may not exercise discretion arbitrarily, inconsistently, or in reliance
on biases or assumptions.
In some contexts, there are regulations and case law that outline
certain factors that officers must review and use as a guide in making
a discretionary determination.\135\ However, there is no exhaustive
list of factors that officers must consider when determining whether an
alien warrants a favorable exercise of discretion with respect to
employment authorization. To perform a discretionary analysis, officers
must weigh all positive factors present in a particular case against
any negative factors in the totality of the record. The analysis must
be comprehensive, specific to the case, and based on all relevant facts
known at the time of adjudication.\136\
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\135\ See USCIS, ``Policy Manual,'' Volume 1, General Policies
and Procedures, Part E, Adjudications, Chapter 8, Discretionary
Analysis, FN 47, <a href="https://www.uscis.gov/policy-manual/volume-1-part-e-chapter-8">https://www.uscis.gov/policy-manual/volume-1-part-e-chapter-8</a>.
\136\ See USCIS, ``Policy Manual,'' Volume 1, General Policies
and Procedures, Part E, Adjudications, Chapter 8, Discretionary
Analysis, <a href="https://www.uscis.gov/policy-manual/volume-1-part-e-chapter-8">https://www.uscis.gov/policy-manual/volume-1-part-e-chapter-8</a>.
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As described in Section II.B, ``Legal Authority,'' the Secretary's
authority to establish discretionary employment authorization
categories and the eligibility criteria for aliens to be granted
employment authorization exists in the Secretary's general authority,
among other provisions, under section 103(a) of the INA, 8 U.S.C.
1103(a) and section 274A(h)(3) of the INA, 8 U.S.C. 1324a(h)(3).
Accordingly, as part of this proposed rule, DHS is proposing to
amend 8 CFR part 274a to clarify how DHS will exercise its
discretionary authority as it relates to employment authorization. The
amendments to 8 CFR part 274a, discussed in further detail below, would
also codify requirements for aliens who are applying for initial and
renewal employment authorization under 8 CFR 274a.12(c) to submit
biometrics at an ASC and pay the associated biometric services fee, as
applicable. As noted above, however, the Asylum EAD Reform Rule
proposes to amend DHS's discretion as it relates to (c)(8) EADs.
The amendments to 8 CFR part 274a would also generally codify DHS's
existing practice of establishing validity periods for employment
authorization and DHS's authority to apply discretion when considering
a grant of employment authorization for applications filed under 8 CFR
274a.12(c), except for the employment eligibility categories that have
otherwise been addressed via statute \137\ or specific regulation.\138\
See proposed 8 CFR 274a.12(c), 274a.13(a)(1)(iv), and 274a.13(b).
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\137\ See INA 244(a)(1)(B), 8 U.S.C. 1254a(a)(1)(B) ((c)(19));
INA 210(d)(2)(B), 8 U.S.C. 1160(d)(2)(B) ((c)(20)); INA 245A(e), 8
U.S.C. 1255a(e) ((c)(22)); Legal Immigration Family Equity Act (LIFE
Act), Public Law 106-553, Sec. 1104(c)(3)(C), 114 Stat. 2762, 2762A-
148 ((c)(24)).
\138\ For example, the regulations have long excepted and
continue to except (c)(8) EADs from discretionary considerations. 8
CFR 274a.13(a)(1).
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DHS is proposing to clarify that USCIS will generally not approve
an application for initial or renewal of employment authorization,
unless DHS has determined there are significant countervailing public
interests, which may include assisting law enforcement activity in the
United States, if (1) the alien: has been arrested for, charged with
(without disposition), indicted for, or has been convicted of, any
criminal act; or (2) the alien admits to committing a violent or
dangerous crime, even if he or she has never been formally arrested,
charged, indicted or convicted; or (3) there is evidence of the alien's
membership in a gang or terrorist organization. See proposed 8 CFR
274a.13(a)(1)(iv). DHS emphasizes that these discretionary factors
apply to all categories of employment authorized under 8 CFR 274a.12(c)
(other than (8), (19), (20), (22), and (24)), including aliens granted
deferred action based on Deferred Action for Childhood Arrivals (DACA),
a bona fide T nonimmigrant status application [which will be
adjudicated consistent with 22 U.S.C. 7101(b)(19)] or U nonimmigrant
status petition, or a waitlisted U nonimmigrant status petition).
By eliminating, with one limited exception, discretionary
employment authorization for aliens for whom there exists evidence of
membership in a gang or terrorist organization, DHS is creating a
disincentive for aliens to affiliate themselves with gangs and
terrorist organizations and conforming its regulations with
Administration priorities. DHS hopes this disincentive will be
especially effective for aliens who intend to apply for employment
authorization by imposing serious consequences on those who may
otherwise affiliate themselves with groups that wish to harm the United
States. When reviewing the available evidence, DHS will apply a multi-
factor approach that takes into consideration all evidence and relevant
factors (for example, and this list is by no means exhaustive, tattoos,
clothing, and evidence including pictures or statements which indicate
the alien has adopted a group identity used to intimidate or create
fear) rather than applying any bright line rules. Pertinent evidence
will change over time as gangs and terrorist organizations adopt new
markers, tactics, and means of operating. Grants of employment
[[Page 34385]]
authorization for these categories of aliens fall within the broad
discretion afforded to the Department. In sum, aliens for whom evidence
demonstrates membership in a gang or terrorist organization would not
warrant a favorable exercise of discretion for employment authorization
unless DHS has determined there are significant countervailing public
interests, which may include assisting law enforcement activity in the
United States. As it is not specifically addressed in this proposed
rulemaking, DHS will provide information regarding the standard of
proof for evidence of membership in a gang or terrorist organization
through departmental guidance.
DHS notes that generally declining to grant employment
authorization to aliens for whom there is evidence of membership in a
gang or terrorist organization is consistent with the Administration's
priorities of combating terrorism and the harms inflicted by gangs.
E.O. 14159, Protecting the American People Against Invasion, recognized
the importance of ``end[ing] the presence of criminal cartels, foreign
gangs, and transnational criminal organizations throughout the United
States.'' \139\ E.O. 14161 announced the Administration's goal ``to
protect its citizens from aliens who intend to commit terrorist
attacks, threaten our national security, espouse hateful ideology, or
otherwise exploit the immigration laws for malevolent purposes.'' \140\
The E.O. further announces the objective of ``ensur[ing] that admitted
aliens and aliens otherwise already present in the United States do not
bear hostile attitudes toward its citizens, culture, government,
institutions, or founding principles, and do not advocate for, aid, or
support designated foreign terrorists or other threats to our national
security.'' By not granting employment authorization to those with ties
or other evidence of membership in a gang or terrorist organization,
the Department is conforming its regulations and practices to the
stated policies of the Administration.
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\139\ 90 FR 8443.
\140\ 90 FR 8451.
---------------------------------------------------------------------------
Additionally, regarding victims of serious crimes or severe forms
of trafficking in persons, DHS has considered that some aliens will not
receive a favorable decision on their discretionary employment
authorization even though the alien is or will be deemed a bona fide
applicant or petitioner, may be placed on the U visa waiting list, may
receive a waiver of inadmissibility based on the same crime or crimes
that rendered them ineligible for discretionary work authorization, and
may ultimately have their victim-based petition or application approved
despite the aforementioned crime or crimes. DHS has determined that,
for consistency, all discretionary employment authorizations should
generally be considered under the same analytical framework, as
described elsewhere in this preamble. Accordingly, it is not necessary
to provide any exceptions or exemptions for these populations because
all populations should, generally, be considered equally in the
presence of negative discretionary factors, per the Administration's
priorities. Further, while this proposed rule would expand or revise
some of the factors that must be considered within discretionary
analysis prior to granting employment authorization, DHS already
conducts discretionary analysis, including a review of national and
public safety concerns, prior to issuing work authorization for these
categories. For example, under current policy, DHS generally declines
to exercise its discretion to grant work authorization and deferred
action to a pending principal U nonimmigrant petitioner, or his or her
qualifying family member, who has been convicted of, or arrested for, a
crime or crimes that indicate a risk to public safety or national
security and would generally render the alien inadmissible. Consistent
with DHS's discretionary authority, this proposed rule simply builds on
the current requirements and confirms DHS's decision not to provide
work authorization to aliens who pose a potential or confirmed public
safety or national security risk, regardless of any other favorable
factors that may be present in their individual cases or the category
under which the alien seeks employment authorization.
1. Biometrics Submission and Criminal History
Currently, DHS only requires certain categories of aliens to submit
biometrics. When required to do so, these aliens receive a biometric
services appointment notice from USCIS to appear at a USCIS application
support center (ASC) to submit their biometrics--typically a
photograph, fingerprints, and a signature. DHS uses biometrics for
identity verification and secure EAD production. DHS is proposing to
codify the requirement to submit biometrics and the requirement to pay
any associated biometric services fee (if applicable) from all aliens
seeking employment authorization under 8 CFR 274a.12(c). See proposed 8
CFR 274a.13(a). In addition, DHS will use the alien's biometrics to
screen for criminal history and perform background checks.
DHS has a strong interest in ensuring public safety and preventing
aliens with criminal histories from obtaining a discretionary benefit,
such as employment authorization. As such, for all aliens applying for
category (c), and who meet all other applicable category-specific
eligibility requirements, DHS will consider each alien's entire
criminal history, including any criminal activity after the alien's
release on OSUP or grant of parole or deferred action, in determining
whether DHS will favorably exercise its discretion to grant employment
authorization. Where criminal history is a factor in the adjudication
of an immigration benefit, DHS generally conducts biometric-based
screenings to independently identify and verify criminal history in
addition to reviewing any evidence submitted by the alien regarding his
or her criminal history.\141\ With the proposal to require the
submission of biometrics from every alien applying for employment
authorization under 8 CFR 274a.12(c), DHS intends to use those
biometrics for identity verification and secure EAD production, while
also using the submitted biometrics to perform criminal history
background checks for public safety, fraud, and national security
vetting. This will allow USCIS to properly vet these aliens applying
for employment authorization and make an appropriate discretionary
determination based upon the results of each applicant's criminal
background check. USCIS would continue to notify aliens of the proper
date, time, and location to submit their biometrics after the
application for employment authorization has been filed.
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\141\ See ``Privacy Act of 1974; System of Records,'' 83 FR
36950 (July 31, 2018).
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In considering the criminal history of an alien, DHS notes that
while an alien's successful participation in state or federal programs
(such as pretrial diversion programs) may not constitute a conviction
for the purposes of the INA, DHS will consider the initial criminal
arrest or law enforcement encounter as a negative discretionary factor.
In general, DHS will not favorably exercise its discretion to grant
employment authorization to aliens who enter into agreements that
impose some form of punishment, penalty, or a restraint on liberty.
This includes agreements or programs where an alien's criminal record
has been sealed or expunged.
[[Page 34386]]
Further, DHS intends to shorten the validity period of the
discretionary EADs (e.g., not more than one year) impacted by the
proposed rule and place the burden on the alien to ensure ongoing
eligibility of those applying for EADs under these categories.
Specifically, DHS is proposing to limit the validity period for EADs
issued for deferred action and OSUP-based employment authorization
categories to a duration not to exceed one year, to align with other
limits imposed in H.R. 1. For additional discretionary categories, DHS
and USCIS, at their discretion, may shorten these EAD validity periods
by issuing sub-regulatory guidance in the future. In addition to
ensuring continuous eligibility, this also supports ongoing management
of aliens on an OSUP to ensure aliens are complying with the terms and
conditions of the OSUP and have not reoffended or absconded. The burden
should be on the alien to comply with biometrics requirements with each
application for employment authorization to ensure USCIS has the most
up-to-date and accurate background check information.
2. Filing Fees
On January 31, 2024, USCIS published a final rule to adjust certain
immigration and naturalization benefit request fees for the first time
since 2016.\142\ The new filing fees were effective for filings
postmarked April 1, 2024, and later. The USCIS Fee Schedule is
published in the Form G-1055, Fee Schedule.\143\ This proposed rule
does not propose to change the associated filing fee for the Form I-
765, Application for Employment Authorization as documented in the most
recent G-1055.
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\142\ In all cases, the previous ``Biometric Services Fee'' was
incorporated into the related form filing fee, with the exception of
Form I-821, Application for Temporary Protected Status. See 89 FR
6194 (Jan. 31, 2024).
\143\ <a href="https://www.uscis.gov/g-1055">https://www.uscis.gov/g-1055</a> (last updated Mar. 6, 2025).
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3. E-Verify
DHS also proposes to revise 8 CFR 274a.12(c)(11), (c)(14), and
(c)(18) to reflect that aliens seeking renewal of their employment
authorization under these employment authorization categories must be
employed by or seeking employment with a U.S. employer who is a
participant in good standing in E-Verify. Therefore, in addition to the
requirements to be eligible for an initial grant of employment
authorization under 8 CFR 274a.12(c)(11), (c)(14), and (c)(18) when
seeking renewal of that employment authorization, an alien must also
demonstrate he or she is employed by or is seeking employment with a
U.S. employer who is a participant in good standing in E-Verify.
So, to be eligible to renew one's employment authorization under
proposed 8 CFR 274a.12(c)(11), an alien must demonstrate he or she has
a current grant of parole, establish both an economic necessity for
employment and that they warrant favorable exercise of discretion, and
be employed by or be seeking employment with a U.S. employer who is a
participant in good standing in E-Verify. To be eligible to renew one's
employment authorization under proposed 8 CFR 274a.12(c)(14), an alien
must demonstrate he or she has a current grant of deferred action,
establish an economic necessity for employment, warrant a favorable
exercise of discretion, and be employed by or be seeking employment
with a U.S. employer who is a participant in good standing in E-Verify.
Lastly, to be eligible to renew one's employment authorization under
proposed 8 CFR 274a.12(c)(18) an alien must demonstrate he or she has
been released under an order of supervision under section 241(a)(3) of
the INA, 8 U.S.C. 1231(a)(3), is complying with the conditions of
release described in their order of supervision, is one whose removal
DHS has determined is impracticable because all countries from which
DHS requested travel documents have failed to issue such documents,
establish an economic necessity for employment, warrant a favorable
exercise of discretion, and be employed by or be seeking employment
with a U.S. employer who is a participant in good standing in E-Verify.
Aliens can ensure they only accept employment from an E-Verify
employer by using the E-Verify Employer Search Tool \144\ on the
publicly available website to determine if the employer is currently
enrolled in E-Verify. If the employer's name appears on the list, this
is a good indication of their enrollment and good standing. E-Verify's
Account Compliance section terminates employers who are not compliant
with E-Verify rules (and therefore not in good standing), and if an
employer is terminated, the E-Verify team will update the search tool.
Employers can request reinstatement after termination if they fix the
underlying issue, so the search tool is updated daily.\145\
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\144\ E-Verify Employer Search Tool can be found at: <a href="https://www.e-verify.gov/e-verify-employer-search">https://www.e-verify.gov/e-verify-employer-search</a>.
\145\ Id.
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An alien can demonstrate he or she is employed by or is seeking
employment with a U.S. employer who is a participant in good standing
in E-Verify by providing the U.S. employer's name as listed in E-Verify
and the employer's E-Verify Company Identification Number (CIN) (or
Client Company Identification Number if the U.S. employer uses an
agent). While the CIN is not available via the search tool, an alien
can obtain the number by contacting their employer or prospective
employer.\146\ As this number does not change, any alien applying for
renewal with the same employer would already have this number. An alien
who fails to establish that he or she is employed by or is seeking
employment with a U.S. employer who is a participant in good standing
in E-Verify would not be eligible for renewal of his or her employment
authorization and an EAD.
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\146\ This is the same requirement as that of F-1 students
applying for a 24-month extension of post-completion optional
practical training, more commonly known as STEM OPT. 8 CFR
214.2(f)(10)(ii)(C)(5).
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DHS will consider an employer to be a participant in good standing
with E-Verify if, at the time of filing of the application for renewal
of employment authorization, the employer (1) has enrolled in E-Verify
with respect to all hiring sites in the United States that employ an
alien with employment authorization under 8 CFR 274a.12(c) and (2) is
in compliance with all requirements of E-Verify, including but not
limited to, verifying the employment eligibility of newly hired
employees at such hiring sites.
Requiring aliens who are seeking renewal of their employment
authorization under the (c)(11), (c)(14), and (c)(18) categories to be
employed by or seeking employment with a U.S. employer who is a
participant in good standing in E-Verify promotes the integrity of the
immigration system and the labor market in the United States. This
requirement creates a system where aliens who are seeking to renew
their employment authorization under the (c)(11), (c)(14), and (c)(18)
categories are engaged with employers that, through their E-Verify MOU,
have agreed to confirm the eligibility of their newly hired employees
to work in the United States and to only hire people who are authorized
to work in the United States and take the additional step to confirm
Form I-9 information using E-Verify. This requirement also creates a
system that prevents the displacement of American workers by
guaranteeing that employers are engaging with aliens who maintain their
basis for employment authorization and
[[Page 34387]]
are not working unlawfully in the United States. In instances where an
alien's parole or deferred action is terminated and his or her EAD is
revoked but USCIS is unable to recover the revoked EAD, the alien may
be able to continue to present the EAD to potential employers. An
employer who is a participant in good standing in E-Verify will be able
to correctly determine the alien's employment authorization status
based on current government records even if the alien presents an EAD
that appears to be facially valid.
4. Economic Necessity
DHS is proposing to modify 8 CFR 274a.12(c)(11), (c)(14), and
(c)(18) to indicate that aliens in all three of these categories must
establish that they have an economic necessity for employment. This
change will result in consistency among the three categories, in
contrast to the current requirement, which currently only mandates that
aliens who received deferred action under (c)(14) and those with a
final order of removal under (c)(18) must establish economic necessity.
This proposed change will consistently ensure that only aliens with an
economic need to work will be eligible for discretionary employment
authorization in these categories, as well as minimize the potential
risk of disadvantaging American workers.
This proposed change also promotes the Administration's objective
to strengthen and enforce protections for American workers. In limiting
employment authorization to those aliens who establish an economic
necessity for employment and warrant a favorable exercise of discretion
by USCIS, this rule will remove barriers and open pathways for American
workers to participate in positions that may otherwise be filled by
aliens. This rule will disincentivize aliens with a final order of
removal from remaining in the United States and thus expand labor
opportunities for American workers. This proposed rule change
contributes to a broader initiative on the part of the federal
government to fulfill the President's domestic policy goal of orienting
American workers for jobs of the future and for a revitalized economy.
B. Discretionary Employment Authorization for Aliens on OSUP
Section 241(a)(7) of the INA, 8 U.S.C. 1231(a)(7), specifically
prohibits an alien who has been ordered removed from the United States
from being eligible to receive employment authorization unless the
Secretary, in his or her discretion, determines, under subparagraph
(a)(7)(A), 8 U.S.C. 1231(a)(7)(A), that the alien cannot be removed due
to the refusal of all countries designated by the alien or under
section 241(b) of the INA, 8 U.S.C. 1231(b), to accept the alien or,
under subparagraph (a)(7)(B), 8 U.S.C. 1231(a)(7)(B), the alien's
removal is otherwise impracticable or contrary to the public interest.
Neither the INA nor the regulations mandate issuance of employment
authorization to any alien subject to a final order of removal or based
on such alien's temporary release from custody on an order of
supervision. The statute preserves the Secretary's discretion to decide
if employment authorization should be granted and, if yes, to which
classes of aliens based upon a finding under subparagraph (A) or (B) of
section 241(a)(7) of the Act, 8 U.S.C. 1231(a)(7)(A), (B).
DHS is proposing to revise 8 CFR 274a.12(c)(18) to amend
eligibility for employment authorization for all aliens who have final
orders of removal and who DHS has temporarily released from custody on
an order of supervision, except for aliens for whom DHS has determined
that their removal from the United States is impracticable because all
countries from which DHS has requested travel documents have failed to
issue such documents. See proposed 8 CFR 274a.12(c)(18). Providing
employment authorization to aliens who do not fall within this
exception undermines the integrity of the immigration system by
incentivizing aliens with a final order of removal to remain in the
United States instead of complying with their orders of removal,
obtaining travel documents in a timely manner, and departing the United
States.
Encouraging aliens who do not fall within the exception provided in
this rule to timely depart the United States also promotes the
efficient use of DHS's limited resources. Managing aliens released on
OSUP consumes an inordinate amount of DHS resources. Management of
aliens temporarily released on OSUP requires tracking and monitoring
the status of such aliens, as well as conducting regular check-ins to
ensure compliance with the conditions of release. This time-intensive
process takes away from other enforcement priorities such as
identifying, detaining, and removing criminal aliens or aliens who pose
threats to the national security and public safety of the country. The
rule also aligns with the Administration's goals of strengthening
protections for American workers.
DHS has determined that continuing to provide employment
authorization to those aliens who fall within the narrow exception
provi
[…truncated; see source link]Indexed from Federal Register on June 5, 2026.
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.