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

Federal RegisterMay 4, 2022

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 274a

[CIS No. 2714-22; DHS Docket No. USCIS-2022-0002]

RIN 1615-AC78

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

AGENCY:

U.S. Citizenship and Immigration Services, DHS.

ACTION:

Temporary final rule with request for comments.

SUMMARY:

This rule temporarily amends existing Department of Homeland Security (DHS) regulations to provide that the automatic extension period applicable to expiring Employment Authorization Documents (Forms I-766

EADs) for certain renewal applicants who have filed Form I-765, Application for Employment Authorization, will be increased from up to 180 days to up to 540 days from the expiration date stated on their EADs. This increase will be available to eligible renewal applicants with pending Forms I-765 as of May 4, 2022, including those applicants whose employment authorization may have lapsed following the initial 180-day extension period, and any eligible applicant who files a renewal Form I-765 during the 540-day period beginning on or after May 4, 2022, and ending October 26, 2023. In light of current processing times for Forms I-765, DHS is taking these steps to help prevent renewal applicants from experiencing a lapse in employment authorization and/or documentation while their applications remain pending and solutions are implemented to return processing times to normal levels.

DATES:

Effective date:

This temporary final rule is effective May 4, 2022, through October 15, 2025.

Submission of public comments:

Written comments must be submitted on or before July 5, 2022. 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 temporary final rule package, identified by DHS Docket No. USCIS-2022-0002, through the Federal eRulemaking Portal:

https://www.regulations.gov.

Follow the website instructions for submitting comments.

Comments submitted in a manner other than the one listed above, including emails or letters sent to USCIS or DHS officials, will not be considered comments on the temporary final rule and may not receive a response. Please note that USCIS cannot accept any comments that are hand-delivered or couriered. In addition, USCIS cannot accept comments contained on any form of digital media storage devices, such as CDs/DVDs and USB drives. USCIS is not accepting mailed comments at this time. If you cannot submit your comment by using

https://www.regulations.gov,

please contact Samantha Deshommes, Chief, Regulatory Coordination Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, by telephone at 240-721-3000 (not a toll-free call) for alternate instructions.

FOR FURTHER INFORMATION CONTACT:

Melissa Lin, Branch Chief, Policy Development and Coordination Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 5900 Capital Gateway Drive, Camp Springs, MD 20746; telephone 240-721-3000 (not a toll-free call).

Individuals with hearing or speech impairments may access the telephone numbers above via TTY by calling the toll-free Federal Information Relay Service at 1-877-889-5627 (TTY/TDD).

SUPPLEMENTARY INFORMATION:

I. Public Participation

DHS invites you to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this temporary final rule. Comments providing the most assistance to DHS will reference a specific provision of the temporary final rule, explain the reason for any recommended change, and include data, information, or authority that supports the recommended change. Comments submitted in a manner other than explicitly provided above, including emails or letters sent to USCIS or DHS officials, will not be considered comments on the temporary final rule and may not receive a response.

Instructions:

All submissions should include the agency name and DHS Docket No. USCIS-2022-0002 for this rulemaking. Providing comments is entirely voluntary. DHS will post all submissions, without change, to the Federal eRulemaking Portal at

https://www.regulations.gov

and will include any personal information you provide. Because the information you submit will be publicly available, you should consider limiting the amount of personal information in your submission. DHS may withhold information provided in comments from public viewing if it determines that such information is offensive or may affect the privacy of an individual. For additional information, please read the Privacy Act notice available through the link in the footer of

https://www.regulations.gov.

Docket:

For access to the docket and to read comments received, go to

https://www.regulations.gov,

referencing DHS Docket No. USCIS-2022-0002. You may also sign up for email alerts on the online docket to be notified when comments are posted or subsequent rulemaking is published.

II. Background

Operational challenges, exacerbated by the emergency measures USCIS employed to maintain its operations through the height of the COVID-19 pandemic in 2020, which greatly affected operations and staffing, combined with a sudden increase in Form I-765 filings, have resulted in processing times for Form I-765 increasing to such a level that the 180-day automatic extension period for Form I-765 renewal applicants' employment authorization and/or EADs is temporarily insufficient. For some applicants, the extension has already expired, while for many others, it is in imminent danger of expiring. As a result, renewal applicants are losing their jobs and employers suddenly are faced with finding replacement workers during a time when the U.S. economy is experiencing more job openings than available workers.

DHS has determined that it is imperative to immediately increase the automatic extension period of employment authorization and/or EADs for eligible Form I-765 renewal applicants for a temporary period. This temporary increase to the automatic extension period will avoid the immediate harm that otherwise would affect tens of thousands of EAD renewal applicants and their U.S. employers in those cases where USCIS is unable to process applicants' EAD renewal applications before the end of the current 180-day automatic extension period. USCIS is already taking steps to more permanently address its backlogs for EAD applications and other form types, and this temporary increase will provide a temporary extension while

USCIS works to return to pre-pandemic processing times.

Bureau of Labor Statistics data show that, as of December 2021, there were 0.6 unemployed persons per job opening. U.S. Department of Labor, U.S. Bureau of Labor Statistics,

Number of unemployed persons per job opening, seasonally adjusted

(Jan. 2007 through Jan. 2022),

https://www.bls.gov/charts/job-openings-and-labor-turnover/unemp-per-job-opening.htm

(last visited Mar. 14, 2022).

A. Legal Authority

The Secretary of Homeland Security's (Secretary) authority for the regulatory amendments made in this TFR are found in: section 274A(h)(3)(B) of the Immigration and Nationality Act (INA), 8 U.S.C. 1324a(h)(3)(B), which recognizes the Secretary's authority to extend employment authorization to noncitizens in the United States; and section 101(b)(1)(F) of the Homeland Security Act, 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.” In addition, section 103(a)(3) of the INA, 8 U.S.C. 1103(a)(3), authorizes the Secretary to establish such regulations as the Secretary deems necessary for carrying out the Secretary's authority under the INA, and section 214 of the INA, 8 U.S.C. 1184, including section 214(a)(1), 8 U.S.C. 1184(a)(1), authorizes the Secretary to prescribe, by regulation, the terms and conditions of the admission of nonimmigrants.

B. Legal Framework for Employment Authorization

1. Types of Employment Authorization: 8 CFR 274a.12(a), (b), and (c)

Whether or not a noncitizen is authorized to work in the United States depends on the noncitizen's immigration status or other conditions that may permit employment authorization (for example, having a pending application for asylum or a grant of deferred action). DHS regulations outline three classes of noncitizens who may be eligible for employment in the United States, as follows:

There are several employment-eligible categories that are not included in DHS regulations but instead are described in the form instructions to Form I-765, Application for Employment Authorization. Employment-authorized L nonimmigrant spouses are an example.

See

INA sec. 214(c)(2)(E), 8 U.S.C. 1184(c)(2)(E).

• Noncitizens in the first class, described at 8 CFR 274a.12(a), are authorized to work “incident to status” for any employer, as well as to engage in self-employment, as a condition of their immigration status or circumstances. Although authorized to work as a condition of their status or circumstances, certain classes of noncitizens must apply to USCIS in order to receive a Form I-766 EAD as evidence of that employment authorization;

See

8 CFR 274a.12(a).

• Noncitizens in the second class, described at 8 CFR 274a.12(b), also are authorized to work “incident to status” as a condition of their immigration status or circumstances, but generally the authorization is valid only for a “specific employer;”

and

See

8 CFR 274a.12(b).These noncitizens are issued an Arrival-Departure Record (Form I-94) indicating their employment-authorized status in the United States and do not file separate requests for evidence of employment authorization.

• Noncitizens in the third class, described at 8 CFR 247a.12(c), are required to apply for employment authorization and may work only if USCIS approves their application. Therefore, they are authorized to work for any employer, as well as to engage in self-employment, upon approval, in the discretion of USCIS, of Form I-765, Application for Employment Authorization, so long as their EAD remains valid.

See

8 CFR 274a.12(c);

Matter of Tong,

16 I&N Dec. 593, 595 (BIA 1978) (holding that the term “employment” is a common one, generally used with relation to the most common pursuits,” and includes “the act of being employed for one's self”).

2. The Application Process for Obtaining Employment Authorization and EADs: 8 CFR 274a.13(a)

For certain eligibility categories listed in 8 CFR 274a.12(a) (the first class) and all eligibility categories listed in 8 CFR 274a.12(c) (the third class), as well as additional categories specified in form instructions, an Application for Employment Authorization (Form I-765) must be properly filed with USCIS (with fee or fee waiver as applicable) to receive employment authorization and/or the Form I-766 EAD.

If granted, such employment authorization and EADs allow noncitizens to work for any U.S. employer or engage in self-employment, as applicable. Certain noncitizens may file Form I-765 concurrently with a related benefit request if permitted by the form instructions or as announced by USCIS.

In some instances, the underlying benefit request, if granted, would form the basis for eligibility for employment authorization.

See

8 CFR 103.2(a) and 8 CFR 274a.13(a). Applicants who are employment authorized incident to status (

e.g.,

asylees, refugees, TPS beneficiaries) will file Form I-765 to request a Form I-766 EAD. Applicants who are filing within an eligibility category listed in 8 CFR 274a.12(c) must use Form I-765 to request both employment authorization and an EAD.

See

8 CFR 274a.13(a).

For eligibility categories listed in 8 CFR 274a.12(a) and (c), USCIS has the discretion to establish a specific validity period for the EAD.

See

8 CFR 274.12(a) and (c).

3. Automatic Extensions of EADs for Renewal Applicants: 8 CFR 274a.13(d)

a. Renewing Employment Authorization and/or EADs

EADs are not valid indefinitely, but instead expire after a specified period of time.

Noncitizens within eligibility categories listed in 8 CFR 274a.12(c) must obtain a renewal of employment authorization and their EAD before the expiration date stated on the current EAD, or the noncitizen will lose the eligibility to work in the United States unless the noncitizen has obtained an immigration status or belongs to a class of individuals with employment authorization incident to that status (or class) since obtaining a current EAD. The same holds true for some classes of noncitizens authorized to work incident to status whose EADs' expiration dates coincide with the termination or expiration of their underlying immigration status. Other noncitizens authorized to work incident to status, such as asylees, refugees, and Temporary Protected Status (TPS) beneficiaries, may have immigration status that confers employment authorization that continues past the expiration date stated on their EADs. Nevertheless, such individuals may wish to renew their EAD in order to have valid evidence of their continuous employment authorization for various purposes, such as presenting evidence of employment authorization and identity to their employers for completion of the Employment Eligibility Verification (Form I-9), or to obtain benefits such as a driver's license from a State motor vehicle agency.

Failure to renew their EADs prior to the expiration date may result in job loss if such individuals do not have or cannot present alternate evidence of employment authorization, as employers who continue to employ individuals without employment

authorization may be subject to civil money penalties.

See

8 CFR 274a.13(b) and 274a.14(a).

For example, the status of asylees generally continues unless and until it is adjusted to lawful permanent resident status, and asylees are employment authorized incident to status. Therefore, asylees' employment authorization typically will continue beyond the expiration date on the EAD, which is issued in 2-year increments. On the other hand, a K-1 fiancée, while also employment authorized incident to status, will receive only a 90-day period in K-1 nonimmigrant status upon admission to the United States. The expiration date of EADs issued to K-1 fiancées will coincide with the 90-day admission period.

For an initial hire, the employee must present the employer with acceptable documents evidencing identity and employment authorization. The lists of acceptable documents can be found on the last page of the Form I-9.

See https://www.uscis.gov/sites/default/files/document/forms/i-9.pdf

(last updated Oct. 21, 2019). An employer that does not properly complete Form I-9, which includes reverifying continued employment authorization, or continues to employ an individual with knowledge that the individual is not authorized to work may be subject to civil money penalties.

See https://www.uscis.gov/i-9-central/handbook-for-employers-m-274/100-unlawful-discrimination-and-penalties-for-prohibited-practices/108-penalties-for-prohibited-practices

(last updated Apr. 27, 2020).

Those seeking to renew previously granted employment authorization and/or EADs must file the renewal request on Form I-765 with USCIS in accordance with the form instructions.

See https://www.uscis.gov/sites/default/files/document/forms/i-765instr.pdf

(08/25/20 edition). In reviewing the Form I-765, USCIS ensures that the fee was paid, a fee waiver was granted, or a fee exemption applies.

Module A. b. Minimizing the Risk of Gaps in Employment Authorization and/or EAD Validity Through Automatic Extensions

If an eligible noncitizen is not able to renew their employment authorization and/or EAD before it expires, the noncitizen and the employer may experience adverse consequences. For the noncitizen, the lack of renewal could cause job loss, gaps in employment authorization, and loss of income to the noncitizen and their family member(s). For the noncitizen's employer, the disruption may cause instability with business continuity or other financial harm. Beyond the financial and economic impact that gaps in employment create for the employer and the noncitizen, if the noncitizen engages in unauthorized employment, such activity may render a noncitizen removable,

render a noncitizen ineligible for future benefits such as adjustment of status,

and/or may subject the employer to civil and criminal penalties.

See, e.g.,

INA sec. 237(a)(1)(C), 8 U.S.C. 1227(a)(1)(C).

See

INA sec. 245(c), 8 U.S.C. 1255(c).

See

INA sec. 274A, 8 U.S.C. 1324a.

Before 2016, USCIS regulations indicated that USCIS would “adjudicate an application [for an EAD] within 90 days” from the date USCIS received the application.

If USCIS did not adjudicate the application within that timeframe, the applicant was eligible to be issued an interim document evidencing employment authorization with a validity period not to exceed 240 days. On November 18, 2016, as part of DHS's efforts to implement the flexibilities provided to noncitizens and employers by the American Competitiveness in the Twenty-first Century Act of 2000 (AC21), as amended, and the American Competitiveness and Workforce Improvement Act of 1998, DHS published a final regulation

removing the provision and replacing it with the current 8 CFR 274a.13(d).

See

8 CFR 274a.13(d) (2016).

See

Final Rule,

Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers,

81 FR 82398 (Nov. 18, 2016) (“AC21 Final Rule”). The final rule was issued after a proposed rule was published in the

Federal Register

See

Notice of Proposed Rulemaking,

Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers,

80 FR 81899 (Dec. 31, 2015) (“AC21 NPRM”).

Under the current provision, certain employment eligibility categories receive an automatic extension of employment authorization and EAD for up to 180 days if certain conditions (outlined below) are met.

DHS created the provision to prevent gaps in employment authorization and related consequences for certain renewal applicants,

and in light of processing times and possible filing surges.

To significantly mitigate the risks of and consequences related to gaps in employment authorization for renewal applicants, DHS changed its regulations at 8 CFR 274a.13(d) to provide certain categories of renewal applicants with an automatic extension of their EADs and, if applicable, related employment authorization, for up to 180 days from the expiration date on the EAD if:

See

81 FR at 82455-82463 (AC21 Final Rule).

See

80 FR at 81927 (“DHS proposes to amend its regulations to help prevent gaps in employment authorization for certain employment-authorized individuals who are seeking to renew expiring EADs. . . . These provisions would significantly mitigate the risk of gaps in employment authorization and required documentation for eligible individuals, thereby benefitting them and their employers.”).

See

80 FR at 81927 (“DHS believes that this time period [of up to 180 days] is reasonable and provides more than ample time for USCIS to complete the adjudication process based on USCIS's current 3-month average processing time for Applications for Employment Authorization.”);

id.

at 81927 n.77 (“Depending on any significant surges in filings, however, there may be periods in which USCIS takes longer than 2 weeks to issue Notices of Action (Forms I-797C).”).

• The renewal applicants timely file an application to renew their employment authorization and/or EAD on Form I-765 before the EAD expires;

8 CFR 274a.13(d)(1)(i). TPS beneficiaries must file during the designated period in the applicable

Federal Register

notice. In addition, the TPS and TPS-related documentation, including EADs, of certain TPS beneficiaries under the TPS designations for Haiti, El Salvador, Sudan, Nicaragua, Honduras, and Nepal are continued subject to current court orders and litigation compliance

Federal Register

notices.

See

86 FR 50725 (Sept. 10, 2021) (continuing TPS and TPS-related documentation for eligible beneficiaries of the TPS designations for the noted six countries through December 31, 2022, and further noting that DHS will issue future such notices as necessary to comply with court orders in

Ramos, et al.

Nielsen, et al.,

No. 18-cv-01554 (N.D. Cal. Oct. 3, 2018) (“

Ramos

”);

Saget, et al.

Trump, et al.,

No. 18-cv-1599 (E.D.N.Y. Apr. 11, 2019) (“

Saget

”); and

Bhattarai

Nielsen,

No. 19-cv-00731 (N.D. Cal. Mar. 12, 2019) (“

Bhattarai

”). DHS also will comply with any superseding court orders in these lawsuits. This TFR will be construed in harmony, to the extent possible, with the existing and any future court orders in this referenced litigation.

• The renewal Form I-765 is based on the same employment authorization category on the front of the expiring EAD or is for an individual approved for TPS whose EAD was issued pursuant to 8 CFR 274a.12(c)(19);

and

See

8 CFR 274a.13(d)(1)(ii) (exempting individuals approved for TPS with EADs issued pursuant to 8 CFR 274a.12(c)(19) from the requirement that the employment authorization category on the face of the expiring EAD be the same as on the request for renewal (Form I-765)).

see also

81 FR at 82456 (AC21 Final Rule).

See

8 CFR 274a.13(d)(3).

See

8 CFR 274a.2(b)(vii) (reverification provision).

Recently, however, it has become apparent that the 180-day automatic extension is not enough for a growing number of renewal applicants. Thousands of renewal applications remain pending beyond the 180-day automatic extension period resulting in applicants losing employment authorization and/or EAD validity. The grave situation that applicants and, in turn, their employers are facing generally is not the result of the applicant's actions, but instead the result of several converging factors affecting USCIS operations that have been compounded by the COVID-19 public health emergency. These factors resulted in a significant increase in USCIS processing times for several categories of Form I-765 renewal applications, as described in detail below. DHS has determined that the 180-day automatic extension provision is currently insufficient to protect applicants as was originally intended.

III. Purpose of This Temporary Final Rule

A. Overview of Issues Negatively Impacting Form I-765 Processing Times

Prior to 2019, USCIS generally kept pace with the steady flow of Form I-765 filings and met its 3-month internal processing goal. However, in the years leading up to 2019, USCIS began accruing backlogs in adjudications across various other form types owing to shifting priorities, increased form lengths, expanded interview requirements, increased Request for Evidence issuance, and insufficient staffing levels due to a hiring freeze within the Field Operations Directorate beginning December 2019 and one in the Service Center Operations

Directorate beginning February 2020.

Those backlogs in other program areas strained USCIS resources, which, when coupled with USCIS' worsening fiscal situation beginning in late 2019 and continuing into 2020 and part of 2021, hindered USCIS' ability to allocate resources to respond to the increase in Form I-765 filings in a manner that would allow USCIS to continue to meet its 3-month internal processing goal as it historically had. Additionally, strain on USCIS' financial resources, which was due in part to USCIS' inability to update its fee structure since 2016, negatively affected staffing levels and hampered the ability to quickly respond to shifting workload demands. The COVID-19 pandemic exacerbated USCIS' precarious fiscal situation, deepening its fiscal emergency. The pandemic also led to new and significant operational disruptions, reversing any gains the agency had made on existing backlogs;

these pandemic-related disruptions impacted adjudications of immigration benefit requests as well as the pipeline of work for which all required pre-adjudicative processing was completed (making forms “adjudication-ready”), including for Form I-765 adjudications.

In 2021, before USCIS could recover from these fiscal and operational impacts, USCIS experienced a sudden and dramatic increase in Form I-765 filings due to: Increased filings in the C09 (pending adjustment) category generally caused by changes in employment-based visa availability, new Temporary Protective Status (TPS) designations and redesignations, and the cyclical nature of the C08 (pending asylum) and C33 (DACA) categories. USCIS has experienced significant Form I-765 backlogs since then.

A U.S. Government Accountability Office report observed that despite receipts remaining steady (between 8 million and 10 million) from fiscal year (FY) 2015 through FY 2019, USCIS' processing times increased through FY 2020, and the overall pending caseload grew an estimated 85 percent, with USCIS having received more than 4 million applications and petitions in the first two quarters of FY 2020, owing to the factors listed above. Factors that affected Form I-765, specifically, will be discussed in further detail below.

See

GAO-21-529, U.S. Citizenship and Immigration Services: Actions Needed to Address Pending Caseload (Aug. 2021), pp. 9, 12, 14, and 20,

https://www.gao.gov/assets/gao-21-529.pdf.

The hiring freezes that began in the Field Operations and Service Center Operations Directorates were eventually subsumed by an agency-wide hiring freeze beginning May 1, 2020, which is discussed in further detail below. USCIS lifted the agency-wide hiring freeze in March 2021.

USCIS had made some progress in addressing these backlogs before the COVID-19 pandemic. In FY 2019, USCIS observed a backlog growth rate of less than 1 percent—the smallest growth in backlogs since 2012. This was due to a 4-percent decrease in receipts, increases in completions (naturalizations, adjustments of status, and nonimmigrant and immigrant worker petitions), and additional staffing. However, the COVID-19 pandemic reversed any gains USCIS had made.

Other contributing factors include competing priorities, such as litigation obligations and administration priorities, that shifted resources away from Form I-765 adjudications or caused the agency to focus resources on certain categories or subcategories of Form I-765; and policy changes (such as expanding biometrics requirements to certain applicants filing Form I-539, Application to Extend/Change Nonimmigrant Status), which delayed USCIS' ability to approve any Form I-765 relying on an underlying Form I-539 decision.

See

GAO-21-529, U.S. Citizenship and Immigration Services: Actions Needed to Address Pending Caseload (Aug. 2021), pp. 15-20. However, these factors, while relevant, have been mitigated through recent policy changes and, therefore, are no longer a significant cause of gaps in employment authorization for applicants. For example, on May 17, 2021, USCIS temporarily suspended the biometrics requirement for certain Form I-539 applicants to address the processing delays exacerbated by limited Application Support Center (ASC) capacity due to COVID-19.

See

USCIS News Alert, USCIS Temporarily Suspends Biometrics Requirement for Certain Form I-539 Applicants,

https://www.uscis.gov/news/alerts/uscis-temporarily-suspends-biometrics-requirement-for-certain-form-i-539-applicants

(last updated May 13, 2021).

Presently, Form I-765 processing times vary, with many categories' processing times extending far beyond USCIS' 3-month processing goal for the form type. By December 2021, the median

processing time for all initial and renewal Form I-765 applications was 6.5 months, and the median processing time for all Form I-765 renewal applications was 5.4 months. For those renewal applicants within employment authorization categories eligible for the up to 180-day automatic extension of employment authorization provided by 8 CFR 274a.13(d), as of December 2021, USCIS' median processing time was 8.0 months.

Given these processing times, DHS recognizes that approximately 87,000 renewal applicants eligible for an automatic extension under 8 CFR 274a.13(d)(1) are, or soon will be, past the 180-day automatic extension period of their employment authorization and/or EAD validity.

The median processing time represents the time it took to complete 50 percent of the cases completed in a given time period.

The time it took USCIS to complete 93 percent of these cases was 11.4 months. For more information on how USCIS calculates its processing times, see USCIS' web page at

https://egov.uscis.gov/processing-times/more-info

(last visited Feb. 9, 2022).

The vast majority of applicants filing renewal Form I-765 applications and who are eligible for the automatic extension of EADs under 8 CFR 274a.13(d) fall under three filing categories: (1) Noncitizens who have properly filed applications for asylum and withholding of deportation or removal (C08); (2) noncitizens who have properly filed applications for adjustment of status to lawful permanent resident under section 245 of the INA, 8 U.S.C. 1255 (C09);

and (3) noncitizens who have properly filed applications for suspension of deportation under section 244 of the INA (as it existed prior to April 1, 1997), cancellation of removal pursuant to section 240A of the INA, or special rule cancellation of removal under section 309(f)(1) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (C10).

As of December 2021, the processing time range (between median and 93rd percentile) for Form I-765 renewal applications filed based on the C08 category was 10.1 to 11.5 months; for the C09 category, 7.7 to 11.6 months; and for the C10 category, 6.1 to 8.6 months. By comparison, this processing time range as of December 2020, for the C08 category, was 5.0 to 6.9 months; for the C09 category, 2.5 to 5.6 months; and for the C10 category, 3.2 to 4.2 months.

Applicants filing a Form I-765 based on a pending LRIF-based adjustment application also use “(c)(9)” as their eligibility category on Form I-765.

In December 2021, these three filing categories made up nearly 95 percent of the renewal EAD receipts filed in categories eligible for the automatic extension of employment authorization. Broken down further among these three categories: The C08 category comprised approximately 58 percent of the renewal EAD receipts filed in categories eligible for the automatic extension, while the C09 category comprised approximately 19 percent and the C10 comprised approximately 18 percent.

In some cases, USCIS' data is based on its fiscal year, beginning on October 1 and ending on September 30 of the reporting period.

Table 1—Recent Dramatic Growth in 50th and 93rd Percentile Processing Times for Form I-765 Renewal Applications Filed by Top Three Filing Categories

Fiscal year

Pending asylum applicants

(C08)

Adjustment of status applicants

(C09)

Suspension/cancellation applicants

(C10)

2017

6.5 to 7.1 months

4.6 to 6.5 months

6.3 to 8.4 months.

2018

2.8 to 4.4 months

4.7 to 8.1 months

7.0 to 9.5 months.

2019

4.1 to 5.2 months

5.2 to 7.8 months

2.7 to 4.6 months.

2020

5.0 to 6.9 months

2.5 to 5.6 months

3.2 to 4.2 months.

2021

10.1 to 11.5 months

7.7 to 11.6 months

6.1 to 8.6 months.

With current processing times far exceeding USCIS' normal 3-month goal, the 180 days of additional employment authorization/EAD validity provided for these renewal (and some additional) categories by 8 CFR 274a.13(d) is insufficient.

After the additional 180 days is exhausted, many applicants are still waiting for their Form I-765 renewal applications to be approved. Such applicants therefore lose employment authorization and/or their EADs become invalid while the decision on their renewal applications remains outstanding. By December 31, 2021, approximately 66,000 renewal EAD applicants were in this situation. By comparison, in December 2020, approximately 3,300 applicants

had Form I-765 renewal applications pending beyond the 180-day automatic extension.

Other renewal categories that fall within 8 CFR 274a.13(d) experiencing processing times in December 2021 that exceed the 3-month goal include EAD applicants filing under 8 CFR 274a.12(a)(5) for individuals granted asylum (6.1 to 10.2 months), (a)(10) for individuals granted withholding of deportation or removal (7.2 to 10.3 months), and (c)(31) for VAWA self-petitioners (6.3 to 13.1 months).

Reasons for delays in case completions for these approximately 3,300 applicants included competing priorities, Requests for Evidence, staffing, and the COVID-19 pandemic.

The 66,000 and approximately 3,300 figures reflect

all

EAD categories eligible for automatic extension of employment eligibility and/or EAD validity. Therefore, some applicants within this population, namely applicants filing under 8 CFR 274a.12(a) (employment authorized incident to status or circumstance), do not necessarily lose their employment authorization after the 180-day automatic extension period is exhausted. Because their employment authorization is incident to their immigration status or circumstance, these renewal EAD applicants' primary consequence is that their EADs become invalid. Considering that the vast majority (approximately 95 percent as of December 2021) of renewal EAD applicants are those filing under 8 CFR 274a.12(c)(8), (9), and (10), however, the 66,000 and 3,300 figures are presumed to represent largely applicants whose primary consequence is a loss of employment authorization itself. Even so, DHS recognizes harm may be experienced by applicants filing under 8 CFR 274a.12(a) categories as well. While these applicants may have available alternative evidentiary options other than an EAD that they can use to show proof of employment authorization to their employers for Form I-9 completion or for purposes of receiving State or local public benefits (

e.g.,

driver's licenses), DHS recognizes that having no valid EAD may nevertheless cause harm, including job loss.

Without immediate intervention, DHS estimates that the situation will only worsen over time, as each month, thousands of additional EAD renewal applicants are at risk of losing their employment authorization and/or EAD validity despite the 180-day automatic extension period currently provided by regulation. Beginning in calendar year (CY) 2022, DHS estimates that approximately 14,500 or more renewal applicants, the majority of whom are in the C08 pending asylum applicant category, lost or could lose their employment authorization and/or EAD validity

each month

unless immediate action is taken to remedy the situation.

The situation for asylum applicants is especially dire because of the significant time that asylum applicants must wait to become employment-authorized in the first place. Under regulations that were in effect from August 2020 through February 2022, most members of this vulnerable population were not permitted to apply for employment authorization until 365 calendar days had elapsed since the filing of their asylum application.

Although this regulation was vacated

in February of 2022, by statute, asylum applicants still cannot be approved for initial EADs until their asylum applications have been pending for 180 days.

This initial wait time exacerbates the often-precarious economic situations asylum seekers may be in as a result of fleeing persecution in their home countries. Many lacked substantial resources to support themselves before they fled, or spent much of what they had to escape their country and travel to the United States. Those with resources may have been forced to leave what they had behind because they lacked the time to sell property or otherwise gather what they owned. When whole families are threatened, the primary earner may be the first to travel to the United States to establish a new home before bringing the rest of the family. The cost to travel to the United States is high, as is the relative cost of living. In these circumstances, if the asylum seeker is unable to seek employment for extended periods of time, it can not only negatively impact that individual, but the whole family as well.

See

Employment Authorization Applications Rule and the Asylum Application, Interview, and Employment Authorization for Applicants Rule (“Broader Asylum EAD Rule”), 85 FR 38532 (June 26, 2020), and preliminary injunction in

Casa de Maryland Inc. et al.

Chad Wolf et al.,

8:20-cv-02118-PX (D. Md. Sept. 11, 2020).

See Asylumworks, et al.

Alejandro N. Mayorkas, et al.,

No 20-CV-3815 BAH, 2022 WL 355213 (D.D.C. Feb 7, 2022).

See

INA 208(d)(2), 8 U.S.C. 1158(d)(2).

For those who have already found jobs to support their needs, the potential for their initial EADs to expire prior to the approval and issuance of a renewed EAD may force them back into instability caused by a gap in the ability to legally work. Some employers, notwithstanding possible violation of INA section 274B governing unfair immigration-related employment practices (8 U.S.C. 1324b), or other laws, may also be hesitant to accept EADs as proof of employment authorization or hire employees who present EADs in the first place if it appears maintaining their employment will be difficult due to potential lapses in employment authorization. Continuous employment authorization during the pendency of an asylum application is vital for asylum seekers in the United States in order to access housing, food, and other necessities. In addition, asylum seekers may need income or employment to access medical care, mental health services, and other resources, as well as to access legal counsel in order to pursue their claims before USCIS or the Executive Office for Immigration Review (EOIR). Access to mental health services is particularly crucial for asylum seekers due to the prevalence of trauma-induced mental health concerns, including depression and post-traumatic stress disorder (PTSD). The physical harm experienced by many asylum seekers necessitates continuous medical care for extended periods of time. Finally, the purpose for which asylum seekers came to the U.S. is to seek long-term protection by receiving asylum. Legal assistance may be key for an asylum seeker to successfully claim asylum,

but it is also often expensive.

See

Transactional Records Access Clearinghouse,

Asylum Grant Rates Climb Under

Biden

(2021),

https://trac.syr.edu/immigration/reports/667/

(last updated Nov. 10, 2021) (“Asylum seekers who are represented by an attorney have greatly increased odds of winning asylum or other forms of relief from deportation.”).

B. Effect of Operational Challenges on Form I-765 Adjudications

1. Precarious Fiscal Status in 2020 and Part of 2021

USCIS is a fee-based agency that relies on predictable fee revenue and its carryover from the previous year. USCIS began experiencing fiscal troubles as early as December 2019, when at least one USCIS directorate initiated a hiring freeze.

These fiscal troubles were due in part to the fact that USCIS has not been able to update its fee structure since the 2016 Fee Rule

(including fees for Form I-765), which does not fully cover the costs of administering current and projected volumes of immigration benefit requests.

USCIS' Field Operations Directorate (FOD) initiated a hiring freeze in December 2019; USCIS' Service Center Operations Directorate (SCOPS) did the same starting in February 2020. While both FOD and SCOPS adjudicate Forms I-765, SCOPS adjudicates the vast majority, including all those filed by pending asylum applicants (C08 category).

See

81 FR 73292 (Oct. 24, 2016).

USCIS promulgated a new Fee Rule in August 2020 to address this fee/cost disparity.

In September 2020, however, the 2020 Fee Rule was enjoined before it took effect and remains under a preliminary injunction.

As such, the current fee for Form I-765 remains at $410, the fee set by the earlier 2016 Fee Rule.

The 2016 Fee Rule also exempts applicants from paying a fee if filing a Form I-765 to request renewal or replacement under 8 CFR 274a.12(c)(9) (pending adjustment of status application), as well as some additional categories.

See U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements,

85 FR 46788 (Aug. 3, 2020) (“2020 Fee Rule”). The 2020 Fee Rule, among other things, adjusted certain immigration and naturalization benefit request fees charged by USCIS, removed certain fee exemptions, and changed the fee waiver requirement.

On September 29, 2020, the U.S. District Court for the Northern District of California in

Immigration Legal Resource Center, et al.

Wolf, et al.,

20-cv-05883-JWS, preliminarily enjoined DHS from implementing or enforcing any part of the 2020 Fee Rule.

See

81 FR 73292 (Oct. 24, 2016).

See

85 FR 46788 (Aug. 3, 2020). Additional categories exempt from the filing fee include 8 CFR 274a.12(a)(8) and (10) and (c)(1), (4), (7), and (16). The category at 8 CFR 274a.12(c)(9) is one of the top categories experiencing unusually long processing times and, therefore, is one of the main focuses of this rule.

The 2020 Fee Rule would have made various changes to USCIS filing fees to help cover the increased cost of adjudicating benefit requests, including a 34 percent increase for the Form I-765 filing fee to $550, and removing fee exemptions for Form I-765 renewals or replacements for applicants filing under 8 CFR 274a.12(c)(9), among other categories.

USCIS continues to rely on the fee schedule established in the 2016 Fee Rule, which does not fully account for current costs associated with adjudicating benefit requests. This unsustainable fiscal situation has, among other things, resulted in the inability to fund sufficient new officer positions to handle the heavy adjudication workload,

meaning that USCIS was already in a precarious financial position with regard to staffing when the COVID-19 pandemic began.

See

85 FR 46788 (Oct. 2, 2020). As noted above, DHS is preliminarily enjoined from implementing or enforcing any part of this rule.

From FY 2015 through FY 2020, USCIS received a range of approximately 2.0 to 2.3 million Form I-765 filings (seeking both initial EADs and renewal of initial EADs) each fiscal year. In FY 2021, this figure increased to approximately 2.6 million. This increase in Form I-765 filings, which was largely observed in the volume of Form I-765 renewal applications sought in categories eligible for automatic extension of EADs, contributed to the formation of backlogs, as discussed further in Section II.C below.

2. Public Health Emergency

On January 31, 2020, the Secretary of Health and Human Services (HHS) declared a public health emergency under section 319 of the Public Health Service Act (42 U.S.C. 247d), in response to COVID-19, which is caused by the SARS-CoV-2 virus.

On February 24, 2021, the President issued a continuation of the national emergency concerning the COVID-19 pandemic.

Effective October 15, 2021, HHS renewed the determination that “a public health emergency exists and has existed since January 27, 2020 nationwide.”

On January 14, 2022, and as a result of the continued consequences of the COVID-19 pandemic, HHS renewed yet again the determination that a public health emergency exists.

See

HHS, Determination that a Public Health Emergency Exists (Jan. 31, 2020),

https://www.phe.gov/emergency/news/healthactions/phe/Pages/2019-nCoV.aspx.

Notice on the Continuation of the National Emergency Concerning the Coronavirus Disease 2019 (COVID-19) Pandemic, 86 FR 11599 (Feb. 26, 2021); Proclamation 9994 of March 13, 2020, Declaring a National Emergency Concerning the Coronavirus Disease (COVID-19) Outbreak, 85 FR 15337 (Mar. 18, 2020).

HHS, Renewal of Determination that a Public Health Emergency Exists (Oct. 15, 2021),

https://www.phe.gov/emergency/news/healthactions/phe/Pages/COVDI-15Oct21.aspx

See

HHS, Office of the Assistant Secretary for Preparedness and Response, Renewal of Determination that a Public Health Emergency Exists (Jan. 14, 2022),

https://aspr.hhs.gov/legal/PHE/Pages/COVID19-14Jan2022.aspx.

As noted above, USCIS was already in a precarious financial situation in 2019. This was severely exacerbated by a significant drop in receipts across many of the most common benefit types at the beginning of the COVID-19 pandemic in spring 2020.

The significant drop in revenue USCIS experienced early in the pandemic led the agency to plan for a sweeping furlough of approximately 70 percent of its workforce to avoid financial collapse, including furloughing immigration services officers who adjudicate the Form I-765.

To avoid the drastic furlough measures, USCIS employed every available means to preserve sufficient funds to meet payroll and carryover obligations. These measures included drastic cuts for supplies, facilities, overtime, and contractor support services, as well as an agency-wide hiring freeze lasting from May 1, 2020, through March 31, 2021. The loss of overtime funds hindered USCIS' ability to address and mitigate backlogs through use of existing staff, which has been a strategy used successfully in the past to ensure processing times remain within goals. For example, in FY 2019, USCIS used $5.52 million of overtime funds for assigned staff to conduct border case

processing after working business hours and on the weekends, instead of assigning more staff to those caseloads during regular work hours, which would have pulled them away from affirmative asylum processing.

Through the use of overtime, USCIS was able to continue to maintain its assigned staffing levels to affirmative asylum processing, but this option was not available in 2020, due to USCIS' worsening fiscal situation beginning in late 2019 and continuing into 2020 and part of 2021. USCIS took action to avert a fiscal crisis, including limiting

spending to salaries and mission-critical activities; making drastic cuts to spending on supplies, facilities, and contractor support services; and eliminating overtime. The loss of contractor support services also hindered USCIS' ability to intake filings efficiently and prepare cases for adjudication by officers. The agency-wide hiring freeze expanded upon individual USCIS components' hiring freezes already in place.

See

2020 USCIS Statistical Annual Report, p. 4: “[During the onset of the COVID-19 pandemic], incoming receipts were 32 percent lower compared to the same time period in FY 2019. By the end of FY 2020, USCIS received about 5% fewer receipts than in FY 2019. Although receipts decreased in some of the most frequently submitted form types, others such as the N-400 (Application for Naturalization) and I-129 (Petition for Nonimmigrant Worker) increased slightly from FY 2019.” In addition to the lowest number of receipts in the past 5 years, USCIS also completed the lowest number of benefit requests in the past 5 years. The worst rates of completion were observed during the beginning of the pandemic when USCIS field offices and ASCs were closed to the public. While USCIS attempted to recover by shifting adjudications to form types not requiring in-person appearances, USCIS still completed fewer benefit requests than it received in FY 2020.

See

2020 USCIS Statistical Annual Report, p. 4.

During this time period, USCIS had an estimated $1.2-billion budget shortfall.

A border case included credible and reasonable fear interviews, as well as Migrant Protection Protocols (MPP) non-refoulement interviews.

These fiscal issues had a direct impact on staffing, and insufficient staffing levels directly impacted the processing times for Form I-765. In addition to a direct shortage of staff due to hiring freezes, USCIS experienced a noticeable increase in attrition following announcement of a potential furlough that could have impacted nearly 70 percent of employees.

Although DHS cannot quantify employees' reasons for leaving, it is likely that the threatened furlough and uncertain fiscal status of the agency played a role. The hiring freeze also meant that the higher-than-normal number of vacancies could not be filled. Additionally, a number of initiatives have taken staff away from their normal duties such as important temporary assignments to the southern border, efforts relating to unaccompanied children, and processing petitions and applications by or on behalf of Afghan evacuees. All these factors contributed to a decrease in Form I-765 completions. For example, in FY 2019, the Service Center Operations Directorate (SCOPS) allocated 343,399 officer hours to its Form I-765 workload

and completed 1,443,235 adjudications (mostly Form I-765 applications filed under 8 CFR 274a.12(c)(8), followed by (c)(33) (granted DACA) and (c)(3)(B) (student post-completion optional practical training (OPT)). By comparison, in FY 2020, SCOPS allocated 327,947 (or approximately 4.5 percent fewer) officer hours to the same workload and subsequently was only able to complete 1,379,745 (or approximately 4.4 percent fewer) adjudications. These reductions were partly attributable to the overall decrease in staff, as well as competing priorities which factor into how existing resources are allocated. At the start of FY 2020, SCOPS had 5,102 employees on board. This diminished to 4,886 at the start of FY 2021 and 4,731 at the start of FY 2022 as the effects of attrition and the hiring freeze continued. This overall decrease of approximately 7.3 percent does not include the additional loss of I-765 adjudication hours that stemmed from SCOPS supporting several programs requesting detailees.

The number of detailees temporarily missing from the SCOPS workforce has not been static, but exceeded 200 employees at points during FY 2021, leaving SCOPS staffed at levels less than 89 percent of what existed going into FY 2020. This data does not include contractor hours, which also were severely impacted by USCIS' fiscal situation as USCIS was forced to reduce the number of contractors available to assist with case processing.

See

DHS, USCIS, News Release,

Deputy Director for Policy Statement of USCIS' Fiscal Outlook

(June 25, 2020),

https://www.uscis.gov/news/news-releases/deputy-director-for-policy-statement-on-uscis-fiscal-outlook.

Form I-765 workload includes requests for initial, renewal, and replacement employment authorization and/or EADs.

A detail is a temporary assignment of an employee to a different position for a specified period, with the employee returning to his or her regular duties at the end of the detail.

Nonetheless, despite the reduction in officer hours, USCIS was able to maintain its 3-month processing goal up until December 2020, due to a corresponding reduction in Form I-765 receipts. This changed in CY 2021, when USCIS experienced an extraordinary, 2-month surge of Form I-765 filings in spring 2021 and a sustained increase of filings thereafter, which is discussed further in Section C below. Despite the surge of Form I-765 filings, SCOPS was able to allocate only 314,924 officer hours (or approximately 4.0 percent fewer than FY 2020 and approximately 8.3 percent fewer than FY 2019) to its Form I-765 workload and completed only 1,249,548 adjudications (or approximately 9.4 percent fewer than FY 2020 and approximately 13.4 percent fewer than FY 2019) due to insufficient staffing and competing priorities. USCIS was unable to surge additional resources to increase officer hours adjudicating Form I-765 applications because of USCIS' limited resources and the need to manage e other competing priorities in FY 2021. For example, USCIS surged officers to adjudicate employment-based Form I-485 applications to minimize the number of employment-based immigrant visas that would go unused at the end of FY 2021, after an extraordinary number of such unused family-preference visa numbers from FY 2020 “fell across” to the employment-based visa allocation for FY 2021,

see generally

INA 201(d)(2)(C), 8 U.S.C. 1151(d)(2)(C), due primarily to Department of State consular closures caused by the COVID-19 pandemic.

Table 2—Impact of Steadily Decreasing Staffing Levels on SCOPS' Form I-765 Completions

[

initial and renewal applications

]

Fiscal year

Officer hours allocated

Form I-765 completions

2019

343,399

1,443,235.

2020

327,947 (approximately 4.5 percent fewer than 2019)

1,379,745 (approximately 4.4 percent fewer than 2019).

2021

314,924 (approximately 8.3 percent fewer than 2019 and 4.0 percent fewer than 2020)

1,249,548 (approximately 13.4 percent fewer than 2019 and 9.4 percent fewer than 2020).

Note:

This data does not include contractor hours, which also were severely impacted by USCIS' fiscal situation as USCIS was forced to reduce the number of contractors available to assist with case processing. SCOPS' contractor staff has been reduced by approximately 8.2% since October 1, 2020.

The Field Office Directorate's National Benefit Center (NBC), which also adjudicates a number of Form I-765 applications

observed a similar reduction in staff and completions.

Such as initial and renewal Forms I-765 filed under 8 CFR 274a.12(c)(9) and (10), which experienced a dramatic growth in processing times in 2021, as detailed in this rule.

Table 3—Impact of Steadily Decreasing Staffing Levels on NBC's Form I-765 Completions

[

initial and renewal applications

]

Fiscal year

Officer hours allocated

Form I-765 completions

2019

115,510

612,464.

2020

112,266 (approximately 2.8 percent fewer than 2019)

605,105 (approximately 1.2 percent fewer than 2019).

2021

102,099 (approximately 11.6 percent fewer than 2019 and 9.1 percent fewer than 2020)

509,973 (approximately 16.7 percent fewer than 2019 and 15.7 percent fewer than 2020).

Note:

3. Other Impacts to Operations

In response to the declaration of a public health emergency, USCIS instituted a number of changes to protect USCIS employees and immigration benefit applicants. From March 18 through June 3, 2020, USCIS closed all field offices and asylum offices to the public, nearly halting all in-person services.

At USCIS field offices, officers conduct in-person interviews related to Form I-485, Application to Register Permanent Residence or Adjust Status, as well as Form N-400, Application for Naturalization, to become a U.S. citizen, among other work. At USCIS asylum offices, officers conduct in-person interviews of asylum applicants (using Form I-589, Application for Asylum and Withholding of Removal). Upon reopening to the public, many asylum offices operated at lower capacity than before the halt in in-person services. Interviewing rooms that previously accommodated asylum officers, asylum applicants, interpreters (if present), and attorneys (if present) all in one room, now would accommodate just the asylum officer, with applicants and any other participants each sitting in separate interview rooms and connecting electronically. This setup substantially decreased daily interview capacity.

See, e.g.,

News Alert, USCIS Temporarily Closing Offices to the Public March 18-April 1 (Mar. 17, 2020),

https://www.uscis.gov/news/alerts/uscis-temporarily-closing-offices-to-the-public-march-18-april-1.

Some limited emergency in-person services were available upon request during this time.

USCIS has issued a series of temporary final rules that allow asylum offices to increase the use of telephonic interpreters, in order to minimize the impact of this safety measure on the agency's ability to adjudicate asylum applications in a timely manner.

See Asylum Interview Interpreter Requirement Modification Due to COVID-19,

85 FR 59655 (Sept. 23, 2020) (TFR);

Asylum Interview Interpreter Requirement Modification Due to COVID-19,

86 FR 15072 (Mar. 22, 2021); and

Asylum Interview Interpreter Requirement Modification Due to COVID-19,

86 FR 51781 (Sept. 17, 2021). As described in Section D.1. below, asylum application processing times impact Form I-765 renewal processing because the longer an asylum application is pending, the more times an applicant may need to file Form I-765 to renew employment authorization. If an individual's asylum application is approved, they no longer need to file Form I-765 to obtain employment authorization because asylees are employment authorized incident to status.

See

8 CFR 274a.12(a)(5). While some asylees may choose to file Form I-765 using the (a)(5) category to receive EADs as evidence of their employment authorization, asylum applicants under the (c)(8) category make up approximately 10 times more Form I-765s than asylees under the (a)(5) category.

See

DHS, USCIS,

Form I 765 Application for Employment Authorization All Receipts, Approvals, Denials Grouped by Eligibility Category and Filing Type

(FY 2019-21),

https://www.uscis.gov/sites/default/files/document/data/I-765_Application_for_Employment_FY03-21.pdf

(last updated Oct 2021). Therefore, USCIS' efforts to minimize the impact of safety measures on the agency's ability to adjudicate asylum applications is helping to reduce the number of asylum applicants making up the pending Form I-765 applicant pool, which is helping to reduce the overall Form I-765 adjudication backlog.

SCOPS' service centers and the NBC, which are not open to the public, never closed, but all Federal functions that could be accomplished at an alternate location were designated for telework to minimize in-person contact and allow proper social distancing for Federal and contract staff whose work required on-site presence. In the early weeks of COVID-19 restrictions, assignments were adjusted to provide telework-suitable work as logistics relating to industrial hygiene were put in place to expand capacity for on-site functions while providing appropriate protections for on-site workers. Service centers and the NBC continued operations by expanding telework capabilities; however, logistics associated with completing work that could not be conducted at home, such as accepting filings, mailroom activities, and file movement, remained a challenge. There was high absenteeism due to COVID-19 quarantine rules among contractors engaged in receipt and file movement activities, which created “frontlogs” in receipts—delays in entering receipt data into USCIS systems—as well as delays in other areas requiring physical handling of files and mail. Furthermore, Form I-765 generally is adjudicated on

a paper receipt file,

and up until 2020, application intake and initial processing generally was handled by Federal contractors, many of whom were terminated due to USCIS' fiscal troubles as detailed above. Proactive adjustments to workspaces, schedules, and file movement practices restored these functions despite a contractor workforce shortfall, but adjustments took approximately 3-5 months to develop and take effect.

Although some Form I-765 applications for certain eligibility categories (

e.g.,

(c)(3)(A), F-1 Pre‐completion OPT; (c)(3)(B), F-1 Post-completion OPT; and (c)(3)(C), F-1 STEM OPT extension) now can be received and adjudicated in an electronic system, in early 2020, all Form I-765 applications were adjudicated on paper.

USCIS Application Support Centers (ASC), which primarily collect biometrics such as photographs and fingerprints in relation to immigration benefit requests, were similarly impacted by the COVID-19 public health emergency. ASCs were temporarily closed from March 18 through July 12, 2020, and began a phased reopening with limited capacity on July 13, 2020. Under normal circumstances, individuals who must appear at an ASC are scheduled to do so within 3-4 weeks of USCIS receiving the underlying application; however, the lengthy closures created massive appointment backlogs. The ASC appointment backlog reached its peak of 1.4 million in January 2021. Although this backlog has been largely addressed, the downstream effects linger in many work streams.

Historically, there have been limited Form I-765 categories that require biometrics submission;

however, the Employment Authorization Applications Rule and the Asylum Application, Interview, and Employment Authorization for Applicants Rule (“Broader Asylum EAD Rule”), 85 FR 38532 (June 26, 2020), imposed a biometrics collection requirement for initial and renewal Forms I-765 in the C08 asylum applicant category—which represents approximately 58 percent of the renewal EAD receipts filed that are eligible for the automatic extension. Consequently, when ASCs were closed, most Form I-765 renewal applications in the C08 category could not be processed.

Furthermore, once ASCs reopened, a large number of applications of varying types needed to be rescheduled, yet there were a limited number of ASC appointments available. This led to delays in applicants receiving ASC appointments, which further delayed the processing of their applications, including Form I-765 renewal applications in the C08 category. The delay in biometrics capture created an interruption to adjudications by preventing applications from getting to the “adjudication-ready” stage. Many categories of I-765s are dependent on their own biometrics requirement or a biometrics requirement associated with an underlying benefit, resulting in bottlenecks that slowed overall adjudications and increased processing times. The new biometrics collection requirement for Form I-765 renewal applications in the C08 category thus played a significant role in the downstream effects of ASCs' temporary closures.

USCIS sought to mitigate the impact of this biometrics capture delay by reusing biometrics where possible.

See, e.g.,

USCIS News Alert, USCIS to Continue Processing Applications for Employment Authorization Requests Despite Application Support Center Closures (Mar. 30, 2020),

https://www.uscis.gov/news/alerts/uscis-to-continue-processing-applications-for-employment-authorization-extension-requests-despite.

For example, in general, applicants must pay an $85 biometric collection services fee if filing with one of the following eligibility categories: (c)(8) An applicant with a pending asylum application requesting an initial or renewal EAD; (c)(33) Requesting consideration of Deferred Action for Childhood Arrivals (DACA); (c)(35) A principal beneficiary of an approved employment-based immigrant petition who is facing compelling circumstances; (c)(36) A spouse or unmarried dependent child of a principal beneficiary of an employment-based immigrant petition who is facing compelling circumstances; or (c)(37) An applicant for Commonwealth of the Northern Mariana Islands long-term resident status.

However, the U.S. District Court for the District of Maryland's Sept. 11, 2020, preliminary injunction in

Casa de Maryland Inc. et al.

Chad Wolf et al.,

8:20-cv-02118-PX (D. Md. Sept. 11, 2020), provided limited injunctive relief to members of two organizations, CASA de Maryland (CASA) and the Asylum Seeker Advocacy Project (ASAP), who file Form I-589 or Form I-765 as asylum applicants. Specifically, the court preliminarily enjoined enforcement of several regulatory changes in the Removal of 30-Day Processing Provision for Asylum Applicant-Related Form I-765 Employment Authorization Applications Rule, 85 FR 37502 (June 22, 2020), and the Broader Asylum EAD Rule for CASA and ASAP members, including the requirement to submit biometric information as part of the filing of a Form I-765 based on an asylum application. On February 7, 2022, the U.S. District Court for the District of Columbia in

Asylumworks, et al.

Alejandro N. Mayorkas, et al.

vacated these two rules entirely.

In addition, while adjudication of Form I-765 does not generally include an in-person interview, some Forms I-765 are based on pending applications that do involve in-person interviews. With the fiscal and operational constraints outlined above, USCIS had processing delays in adjustment of status applications and asylum applications; applicants seeking employment authorization based on a pending adjustment of status application or asylum application comprise the great majority of the filing population seeking renewal EADs and eligible for an automatic extension of their EADs under 8 CFR 274a.13(d).

Owing to USCIS' inability to adjudicate interview-dependent adjustment of status and asylum applications while its offices were closed, those cases were pending longer than usual, in addition to an influx of new applications. With those underlying applications taking longer to process, the population of applicants who needed to request EAD renewals during the pendency of their primary applications increased.

See

above section entitled “Overview of Issues Negatively Impacting Form I-765 Processing Times.”

For example, in 2020, an applicant seeking employment authorization based on a pending adjustment of status application would have obtained an EAD valid for 1 year, if eligible. With processing times for adjustment of status applications extending beyond 1 year, the applicant would have to apply to renew the EAD to obtain employment authorization while their adjustment of status application remains pending. Where adjustment of status applications with an immediately available immigrant visa are processed within the 6-month processing goal, such applicants generally should not have to renew their EAD as they would receive employment authorization incident to their lawful permanent resident status upon approval of their adjustment of status application. In recognition of prolonged processing times for adjustment of status applications, USCIS updated its policy guidance to provide a 2-year validity period for initial and renewal EADs issued based on pending adjustment of status applications.

See

USCIS Policy Manual, Policy Alert (PA-2021-10), Employment Authorization for Certain Adjustment Applicants (Jun. 9, 2021),

https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20210609-EmploymentAuthorization.pdf.

In doing so, USCIS attempted to alleviate the burden on adjustment of status applicants seeking EADs. Unfortunately, USCIS was unable to take similar steps for the asylum applicant population, as it was already providing 2-year validity periods for employment authorization and EADs, the maximum allowed by the Broader Asylum EAD Rule. As of December 2021, the median processing time for affirmative asylum applications (Form I-589) is 55.4 months. As of December 2021, the median processing time for adjustment of status applications (Form I-485) is 13.2 months, however some adjustment applications remain pending much longer because of regression in the cutoff dates used to determine when an immigrant visa is immediately available.

Even though USCIS reopened its ASCs, field offices, and asylum offices in mid-2020, USCIS still is working to return to pre-pandemic levels of operation, with varying progress across programs. For example, social distancing guidelines result in reduced interview capacity and productivity for some interview-dependent benefit requests, including some adjustment of status and asylum applications. USCIS implemented measures to recapture productivity under social distancing protocols, including video-assisted interviewing, increased use of telephonic interpreters,

expanded

work flexibilities for USCIS employees,

and remote applicant-centric services such as a pilot remote-attorney participation program.

However, the impacts of the operational disruptions in 2020 are still evident in USCIS' prolonged processing times, illustrating USCIS' continued struggle to address the pending cases that accrued when offices were closed while attempting to keep pace with new filings (which, in the case of Form I-765 renewals, unexpectedly surged in 2021, as described below).

See Asylum Interview Interpreter Requirement Modification Due to COVID-19,

85 FR 59655 (Sept.

23, 2020) (TFR);

Asylum Interview Interpreter Requirement Modification Due to COVID-19,

86 FR 15072 (Mar. 22, 2021); and

Asylum Interview Interpreter Requirement Modification Due to COVID-19,

86 FR 51781 (Sept. 17, 2021).

As an example, USCIS expanded telework flexibility arrangements under which an employee could perform the duties and responsibilities of such employee's position, and other authorized activities, from an approved worksite other than the location from which the employee would normally work. In addition, certain telework restrictions were lifted (

e.g.,

allowing split shifts, non-standard work hours, and mixing telework and leave) so that caregivers and parents could meet personal and work obligations while working from home.

See

Impact of Pandemic Response Measures, p. 6, in Backlog Reduction of Pending Affirmative Asylum Cases: Fiscal Year 2021 Report to Congress (Oct. 20, 2021),

https://www.dhs.gov/sites/default/files/2021-12/USCIS%20-%20Backlog%20Reduction%20of%20Pending%20Affirmative%20Asylum%20Cases.pdf.

In the last three fiscal years, the median processing time across all form types was 8.7 months in FY 2021, 8.3 months in FY 2020, and 6.5 months in FY 2019.

Additionally, USCIS continues to provide flexibilities in recognition of the pandemic's ongoing impacts on benefit requestors, which in some cases negatively impact the efficiency of USCIS operations.

For example, USCIS continues to provide rescheduling flexibilities for interviews and ASC appointments, limit the number of staff and members of the public that may appear in person at a USCIS office, and provide flexibilities pertaining to responses to Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs) by considering a response received within 60 calendar days after the response due date set in the request or notice before taking any action.

While USCIS believes these steps have been critical to address the impacts of the COVID-19 pandemic, these measures have not been implemented without costs. Limiting the number of in-person staff at any given time may reduce the number of interviews USCIS can conduct in any given day, although USCIS is exploring additional alternatives to in-person interviewing that may mitigate this impact. Providing rescheduling flexibilities for interviews and time for responses for RFEs or NOIDs also prolong the officer's adjudication times. The downstream effect of delays in initial file processing, delays at the ASC and field offices, and insufficient staffing levels due to USCIS' fiscal situation in calendar years 2019 and 2020, as well as delays caused in certain workloads due to workforce shifts to ensure timely adjudication of other benefits, contributed to USCIS accruing an overall net backlog

of approximately 5.1 million cases as of the end of December 2021, of which 930,000 (approximately 18%) were pending Form I-765 applications.

For a detailed description of the many flexibilities and precautionary measures USCIS provides to combat COVID-19,

see

USCIS's website at

https://www.uscis.gov/about-us/uscis-response-to-covid-19

(last updated Mar 30, 2022).

See

Deadlines for Certain Requests, Notices, and Appeals in the USCIS Response to COVID-19 web page at

https://www.uscis.gov/about-us/uscis-response-to-covid-19

(last updated Mar. 30, 2022).

Backlog is defined as the volume of pending applications that exceed the level of acceptable pending cases. Whether a pending case load is acceptable is pegged to the volume of applications receipted during the target cycle time period (

e.g.,

5 months). The target cycle time refers to the processing time goal for a given application type. Net backlog is defined similarly to backlog, except that the number of pending applications is reduced to account for cases in active suspense categories (

i.e.,

cases that are deducted from the gross backlog, such as cases with a pending Request for Evidence, cases awaiting visa availability from the Department of State, or cases pending re-examination for an N-400, Application for Naturalization).

C. Sudden Increase in Form I-765 Filings in 2021

1. Comparing FY 2021 Receipts to Prior Years' Receipts

The most recent contributing factor to the severe backlog and increased processing times for Forms I-765 is a substantial and unprecedented 2-month increase of Form I-765 renewal filings in March and April 2021, and a sustained increase in filings thereafter. In CY 2019, the average number of monthly renewal applications filed for the C08, C09, and C10 categories combined was 46,715. In CY 2020, the average number of monthly renewal applications filed for these three categories was 43,232. In March 2021, the renewal receipt numbers for these three categories spiked 56 percent over the previous month and 76.4 percent over the monthly average total for 2020. In April 2021, the renewal receipt numbers for these three categories remained elevated such that they were 25.6 percent higher than February 2021, and 53.6 percent over the monthly average total for 2020. The March and April 2021 increase in Form I-765 renewal applications was unexpected based on historical filing patterns and appears to be related to litigation.

This increase in Form I-765 filings may have been driven primarily by litigation and the “frontlog” of applications at the three USCIS lockbox facilities, which receive and process applications and payments in Chicago, Illinois; Phoenix, Arizona; and Lewisville, Texas. On July 20, 2020, Casa de Maryland, Inc. filed suit against then-Acting DHS Secretary Chad Wolf and DHS to enjoin changes to EAD rules for asylum seekers. On September 11, 2021, the U.S. District Court of Maryland issued a preliminary injunction of the new EAD rules.

See Casa de Maryland

Wolf,

486 F.Supp.3d 928 (D. Md. Sept. 11, 2020). Consequently, approximately 23,000 applications pending at the USCIS lockbox were rejected in late October 2020 for a failure to pay the required biometrics fee or a failure to provide proof that the applicant was a member of the litigation class. These applications were refiled and, coupled with the prioritization of initial Form I-765 applications under category C08 due to the litigation, led to a redirection of resources away from Form I-765 renewal applications. In addition, as noted above, the lockbox was experiencing a “frontlog” of applications, which led to a processing delay.

Table 4—Surge in Renewal Form I-765 Filings

Month

C08 category

C09 category

C10 category

Average total

February 2021

30,857

14,661

8,367

52,885

March 2021

52,007

19,589

10,840

82,436

April 2021

42,101

15,189

9,134

66,424

May 2021

32,751

13,332

7,887

53,960

In the eight months following April 2021, the receipt numbers for these categories fell to an average of 52,400 receipts per month, but that was still 21 percent above the average monthly total for CY 2020. The increase in the number and duration of pendency of asylum and adjustment of status applications, which form the basis for the two most populous EAD filing categories eligible for the automatic extension under 8 CFR 274a.13(d)(1), may have led to this sustained increase in applications for initial and renewal employment authorization (in the C08 and C09 categories, respectively), which further compounded the Form I-765 adjudication backlog.

USCIS is actively working to address prolonged processing times affecting applications and petitions that form the basis of a Form I-765 filing. These measures are described in further detail in Section D.1 below.

Specifically, in the years leading up to FY 2022, asylum application receipts outpaced available resources leading to an increase in pending asylum cases, both in affirmative and defensive filings, as shown in Table 5.

The increase in pending asylum cases contributed to the increase in C08 renewal filings in FY 2021, which further impacted the Form I-765 renewal backlog.

See

Background, p. 2, in Backlog Reduction of Pending Affirmative Asylum Cases: Fiscal Year 2021 Report to Congress (Oct. 20, 2021),

https://www.dhs.gov/sites/default/files/2021-12/USCIS%20-%20Backlog%20Reduction%20of%20Pending%20Affirmative%20Asylum%20Cases.pdf

(“The affirmative asylum backlog is the result of a prolonged, significant increase in affirmative asylum application filings and credible fear screenings, which are processed by the U.S. Citizenship and Immigration Services (USCIS) asylum offices. Between FY 2013 and FY 2017, despite significant staffing increases, receipt growth in asylum office workloads outpaced the expansion of asylum office staffing and the establishment of new or expanded facilities needed to support additional staffing growth.”).

100

See Executive Office of Immigration Review Adjudication Statistics, Total Asylum Applications (Jan 19, 2022),

https://www.justice.gov/eoir/page/file/1106366/download.

101

Data reflects affirmatively filed I-589 asylum applications and do not include defensive asylum claims before a DOJ EOIR immigration court. See USCIS, Number of Service Wide Forms, October 1, 2021-December 31, 2021,

https://www.uscis.gov/sites/default/files/document/reports/Quarterly_All_Forms_FY2022_Q1.pdf

(last updated Feb. 2022).

Table 5—Total Asylum Cases Pending

DOJ

100

USCIS

101

Total

Total Asylum Cases Pending in:

FY 2017 (Sep 2017)

377,140

289,835

666,975

FY 2018 (Sep 2018)

473,510

319,202

792,712

FY 2019 (Sep 2019)

608,976

339,836

948,812

FY 2020 (Sep 2020)

647,923

386,014

1,033,937

FY 2022 (Dec 2021)

628,551

432,341

1,060,892

The number of employment-based adjustment of status applications increased significantly in FY 2021, as well, due to the inordinate number of employment-based visas that became available as a result of unusually low visa usage in other categories in FY 2020 due to the COVID-19 pandemic. At the start of FY 2021, there were approximately 126,000 employment-based adjustment of status applications pending with USCIS. Approximately 313,000 employment-based adjustment of status applications were received during FY 2021, which likely contributed to the increase in C09 initial filings in FY 2021, consequently further taxing USCIS' resources to timely process renewal applications. USCIS also saw significant increases in filings across other benefit request types during CY 2021.

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For example, USCIS also encountered large increases of filings of Form I-131, Application for Travel Document, possibly related to the increase in filings of Form I-485, Application to Register Permanent Residence. From CY 2020 to CY 2021, USCIS observed an overall 25.8 percent increase in receipts across form types. Although this represents a substantial increase, there was a 29 percent increase in Form I-765 renewal applications in the auto extension categories.

This surge and sustained increase in Form I-765 receipts over the course of CY 2021 as compared to the previous calendar year compounded what otherwise might have been a moderate Form I-765 backlog and created a substantial spike in processing times. In CY 2021, USCIS received approximately 2,550,000 initial and renewal Forms I-765, which was 22 percent higher than the volume received in CY 2020 (approximately 2,090,000) and 15 percent higher than the volume received in CY 2019 (approximately 2,210,000). Similarly, in CY 2021, USCIS received approximately 1,260,000 Form I-765 renewal applications, which was 21 percent higher than the volume received in CY 2020 (approximately 1,040,000) and 13 percent higher than the volume received in CY 2019 (approximately 1,120,000).

Table 5A—Initial and Renewal Form I-765 Filings

Calendar

year

Form I-765

filings

Surge or

difference

2019

2,210,000

2020

2,090,000

5 percent lower than 2019.

2021

2,550,000

15 percent higher than 2019.

22 percent higher than 2020.

Table 5B—Renewal Form I-765 Filings

Calendar

year

Form I-765

filings

Surge or

difference

2019

1,120,000

2020

1,040,000

7 percent lower than 2019.

2021

1,260,000

13 percent higher than 2019.

21 percent higher than 2020.

As demonstrated above, calendar years 2020 and 2021 were difficult years for USCIS because unprecedented

financial strains led to staffing issues, resulting in an inability to handle the 2-month spike and monthly increase in filings in CY 2021 over CY 2020. The average monthly receipts in 2021 for the automatic extension categories were 60,300, which was 13,500 per month (or 29 percent) higher than 2020 monthly averages. In addition to this higher overall receipt volume in 2021, there was a surge in receipts in March 2021 (88,500) and April 2021 (71,200) that led to a rapid increase in pending applications. On top of the higher receipt volumes, due to staffing issues, the average number of monthly completions in 2021 was 33,900 per month, which was 10,600 per month (or 24 percent) lower than 2020 monthly averages. The combination of higher receipts and lower completions led to increased processing times, which downstream resulted in higher numbers of renewal applications pending past the 180-day automatic extension period.

2. Workforce Planning Shortfall

USCIS normally uses an annual workforce planning process to assess staffing requirements, known as the Staffing Allocation Model (SAM). The SAM is focused on allocating staff to process the anticipated number of new/incoming receipts for all workloads for the next fiscal year. Workforce planning is based on USCIS estimates for each adjudication workload for the coming year. These workload estimates are established through a cross-disciplinary committee, the Volume Projection Committee, that forecasts receipts on the basis of statistical modeling and any recent policy changes. In 2021, new receipts rose too rapidly to provide new staffing allocations within the SAM for both new receipts and backlog cases. In other words, despite the predictions based on data and historic trends, the Form I-765 filings in FY 2021 were significantly greater than forecasted. USCIS relies on a combination of internal processes and plans to plan for backlog reduction.

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One such process or plan is the Model for Operational Planning, which considers the backlog and the outlook of future backlogs based on current and future staffing. The primary way staffing for backlog reduction has taken place is through improved efficiencies to current processes as well as appropriations from Congress.

D. Emergency Temporary Solution To Address Current Backlog

The sudden 2-month increase in Form I-765 renewal filings in March and April of 2021 and sustained overall increase in Form I-765 renewal receipts thereafter prompted USCIS to directly address the growing backlog of Form I-765 filings. Historically, USCIS had sufficient resources to address growing backlogs by allocating additional officers to a particular workload. However, USCIS was unable to do so in the summer of 2021 due to understaffing, including reduced contracting resources resulting from the prior years' fiscal situation; the broad scope of backlogs across numerous benefit types; and competing priorities, as discussed above. USCIS was, however, able to apply overtime funds to the renewal Form I-765 workload in an attempt to control the growing backlog during the last quarter of FY 2021.

104

Indeed, USCIS observed an increase in Form I-765 renewal completions, however, it was not enough to match the increased volume of receipts and therefore USCIS' responsive measures mitigated but did not halt the backlog growth.

105

Considering the operational constraints described above, USCIS also explored programmatic improvement initiatives and updates to its policy and operational guidance in the summer of 2021 to attempt to address prolonged Form I-765 processing times and their impact. For example, USCIS launched a backlog reduction effort in September 2021 to assess other options available to the agency to address the severe and growing Form I-765 backlogs.

106

It has become apparent to USCIS, however, that its limited resources are insufficient to appropriately address the growing backlogs, with the incoming volume of Form I-765 renewal filings showing no signs of slowing. Further, USCIS has assessed that the conventional measures USCIS had applied (

e.g.,

overtime) and was continuing to explore (

e.g.,

through the backlog reduction effort) will not be able to timely address the impending loss of employment authorization and EAD validity.

104

See Section B.2 for more information on USCIS' use of overtime funds as a tool to manage its workload.

105

For example, USCIS completed 15,904 Form I-765 C08 renewals in July 2021. After applying overtime funds to Form I-765s, USCIS completed 23,987 and 24,267 Form I-765 C08 renewals in August and September 2021, respectively. However, USCIS returned to its prior completion rate in October 2021 (where USCIS completed 13,932 C08 renewals) due to such overtime funds no longer being available in the new fiscal year. USCIS received additional appropriated funding for overtime in FY 2022 to apply toward backlog reduction efforts, but these funds only became available for operational use in early 2022.

106

See, e.g.,

USCIS Policy Manual, Policy Alert (PA-2022-07), Updating General Guidelines on Maximum Validity Periods for Employment Authorization Documents based on Certain Filing Categories (Feb. 7, 2022),

https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20220207-EmploymentAuthorizationValidity.pdf.

1. Current Measures To Reduce the Backlog and Reduce Processing Times

Addressing Form I-765 processing times is a priority for USCIS. Backlogs in general are a significant concern for the applicants who are applying for benefits with USCIS because, as the backlogs increase, applicants and petitioners experience longer wait times to receive a decision on their benefit requests. This is especially concerning where the backlog involves employment authorization, which is critical to applicants' and their families' livelihoods as well as U.S. employers' continuity of operations. USCIS understands the impact that delays in receiving decisions and documentation have on applicants and petitioners and is striving to address the backlogs and the resulting negative consequences through a number of measures, including but not limited to this TFR.

USCIS continues to recover from the pandemic-related impacts on operations and revenue, leading to a gradually improving fiscal situation, return to stability, and renewed capacity to undertake initiatives to reduce backlogs. USCIS lifted the agency-wide hiring freeze in March 2021. With the hiring freeze lifted, USCIS was able to begin hiring staff in an attempt to return to pre-pandemic staffing levels.

107

Initial hiring was largely internal in order to fill promotional vacancies, with public job announcements to hire from outside USCIS following. This effort's impact is not realized immediately, as it is lengthy, time-consuming, and ongoing.

The hiring process itself is lengthy as it includes posting the job announcement, reviewing resumes, providing qualified candidates' information to the hiring office, assessments, interviews, selections, and background checks prior to a new employee entering on duty. New hires then go through orientation, basic training, duty-specific training and mentoring. The entire process from posting to a new hire reaching full proficiency takes several months.

107

Such a long pause in hiring from May 1, 2020, to March 2021 resulted in approximately 2,000 unfilled vacancies, out of approximately 20,000 positions across the agency. As of November 6, 2021, USCIS estimates the number of vacancies had risen to approximately 3,000 due to primarily internal selections following the hiring freeze, although USCIS did also add some positions as well. USCIS estimates it will take the agency to the end of CY 2022 to fill the current level of vacancies. While USCIS did receive $250 million in funding from Congress for application processing, backlog reduction, and the refugee program in late September 2021, it will take time for such funding to translate to a significant increase in additional officers proficient at adjudicating and completing Form I-765 renewal applications. See Extending Government Funding and Delivering Emergency Assistance Act, 2022, Public Law 117-43 (Sept. 30, 2021). USCIS has identified Form I-765 as well as Form I-485 and Form I-589 (which represent two of the three major filing categories seeking renewal EADs and eligible for automatic extension of the prior EAD) for inclusion in backlog reduction efforts funded in part by appropriations. The $250 million appropriated through Public Law 117-43, however, will only partly fund the 1,316 positions needed for all of USCIS' backlog reduction initiatives; therefore, USCIS continues to seek additional funding as requested in the FY 2022 President's Budget ($345 million).

USCIS is also in the process of developing a new Fee Rule to recoup adjudicatory costs incurred at current levels, and to support the agency's ability to match staffing levels with its workload in a sustainable way. To effect more immediate change with EAD renewals, USCIS reviewed its policies and procedures to update policy guidance,

108

expanded use of overtime hours as funding permitted, and applied innovative approaches to backlog reduction using technology in strategic ways, which initially is showing promising results.

109

In addition, USCIS is focused on addressing prolonged processing times affecting applications and petitions that form the basis of a Form I-765 filing and, therefore, indirectly impact Form I-765 renewal processing times, such as in the case of asylum or adjustment of status applications where a Form I-765 filing is based on the continued pendency of such application.

108

See, e.g.,

USCIS Policy Manual, Policy Alert (PA-2021-25), Employment Authorization for Certain H-4, E, and L Nonimmigrant Dependent Spouses (Nov. 12, 2021),

https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20211112-EmploymentAuthorization.pdf. See

USCIS Policy Manual, Policy Alert (PA-2021-10), Employment Authorization for Certain Adjustment Applicants (June 9, 2021),

https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20210609-EmploymentAuthorization.pdf. See

USCIS Policy Manual, Policy Alert (PA-2022-07), Updating General Guidelines on Maximum Validity Periods for Employment Authorization Documents based on Certain Filing Categories (Feb. 7, 2022),

https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20220207-EmploymentAuthorizationValidity.pdf.

109

Efforts to improve timely processing and remove bureaucratic hurdles are underway. One of the first initiatives is to automatically identify pending applications that are no longer needed (for example, a Form I-765 based on a pending adjustment application is moot upon the applicant's adjustment of status to that of a lawful permanent resident) and close them, thus eliminating the need for an officer to review and allowing other applications to proceed to adjudication more quickly. While initial results of such initiatives are promising, it is too early to tell what the long-term, sustained impacts on processing times will be. USCIS continues to look for additional areas where systems can be used to identify and complete simple functions that free up officer resources for adjudicative work.

For example, an applicant seeking asylum is eligible for employment authorization on the basis of the pendency of the asylum application.

110

USCIS currently grants employment authorization based on a pending asylum application in 2-year increments.

111

If an asylum application is pending for up to 5 years or more, as is currently the case for some applications,

112

then an applicant must file to renew employment authorization at least twice. If processing times for asylum applications were reduced to 3 years, the applicant would need only file to renew employment authorization once, saving USCIS adjudicatory resources.

110

An asylee cannot apply for initial employment authorization earlier than 150 calendar days after the date USCIS or the immigration court accepts the asylum application.

111

This was the maximum time allowed under regulation until February 7, 2022, when the U.S. District Court for the District of Columbia vacated parts of 8 CFR 274a.12(c)(8) (“Employment authorization may be granted according to the provisions of 8 CFR 208.7 of this chapter in increments to be determined by USCIS but not to exceed increments of two years.”).

See Asylumworks, et al.

Alejandro N. Mayorkas, et al.,

No. 20-cv-3815, 2022 WL 355213 (D.D.C. Feb. 7, 2022). USCIS is considering what, if any, steps it may take in light of this ruling.

112

The extended wait time for ayslum applications particularly affects many defensive asylum filings in immigration court. (A noncitizen may apply for asylum affirmatively with USCIS or defensively in immigration court.) As of December 31, 2021, there were 628,551 asylum applications pending in immigration courts.

See

Executive Office for Immigration Review Adjudication Statistics,

https://www.justice.gov/eoir/page/file/1106366/download

(last visited Apr. 14, 2022). This DOJ data also implies that 156,127 and 90,880 cases were completed in FY2020 and 2021, respectively, or an average of 123,504 cases a year. In the first quarter of FY2022, 42,090 cases were completed. If this rate continues, it would take approximately 4.2 years to complete the adjudication of the total 628,551 asylum cases pending in the courts as of December 31, 2021.

Another area in which USCIS is actively prioritizing its workload is employment-based adjustment of status applications as backlogs in adjudication of these applications also have downstream effects on EAD application adjudications, as described above. While USCIS normally processes approximately 115,000 employment-based adjustment of status applications annually,

113

generally to correspond with the number of available employment-based immigrant visas minus the number typically issued by Department of State annually, USCIS prioritized processing employment-based adjustment applications to maximize available visa usage in FY 2021. By the end of FY 2021, USCIS had processed and approved approximately 172,000 employment-based adjustment of status applications, an increase of approximately 50 percent above the typical baseline;

114

however, approximately 257,000 remained unadjudicated, including approximately 75,000 impacted by priority date retrogressions that may leave them pending for many years, and thereby eligible for C09 EADs over this extended period.

115

To the extent possible, USCIS is committed to prioritizing employment-based adjustment of status applications to utilize the available visa numbers each fiscal year; doing so relieves applicants from filing Forms I-765 to seek renewal EADs while their adjustment of status application remains pending since lawful permanent residents are employment authorized incident to status.

116

Therefore, the more adjustment of status applications USCIS is able to process, the fewer Form I-765 renewal applications USCIS will receive (based on pending INA 245 adjustment of status applications).

113

See

DHS Office of Immigration Statistics, 2019 Yearbook of Immigration Statistics, Table 6, Persons Obtaining Lawful Permanent Resident Status by Type and Major Class of Admission: Fiscal Years 2010 2019 (Sep. 2020),

https://www.dhs.gov/sites/default/files/publications/immigration-statistics/yearbook/2019/yearbook_immigration_statistics_2019.pdf.

114

See

News Release, USCIS Announces FY 2021 Accomplishments, (Dec. 15, 2021),

https://www.uscis.gov/newsroom/news-releases/uscis-announces-fy-2021-accomplishments.

115

Applicants from China and India seeking adjustment of status based on the employment-based third preference category experienced visa retrogression in their respective filing categories as of October 1, 2021, impacting approximately 75,000 applicants. For more information on visa retrogression,

see https://www.uscis.gov/green-card/green-card-processes-and-procedures/visa-availability-priority-dates/visa-retrogression

(last updated Mar. 8, 2018). Based on a rate of approximately 8,000 visa numbers becoming available for these affected categories per year, as was the case in FY 2019, it may take more than 9 years for visas to become available for these approximately 75,000 applicants. In the interest of reducing the burden on both the agency and the public, on June 9, 2021, USCIS increased the maximum validity period for initial and renewal EADs issued to applicants for adjustment of status under INA 245 from 1 year to 2 years based on average processing times. See USCIS Policy Manual, Policy Alert, Employment Authorization for Certain Adjustment Applicants (Jun 9, 2021),

https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20210609-EmploymentAuthorization.pdf.

USCIS' return to its processing goal of 3 months for Form I-765 renewal applications is critically important for such applicants who may rely on timely renewals multiple times.

116

See 8 CFR 274a.12(a)(1).

DHS expects that USCIS' backlog reduction efforts in these areas will positively impact Form I-765 backlogs by reducing the volume of Form I-765 filings. However, we anticipate that the impact of these backlog reduction efforts will not be immediately felt by applicants with expiring or expired employment authorization. Therefore, DHS has determined that in the interim, urgent action is needed to address the

plight of a growing number of EAD renewal applicants who have experienced or may in the near future experience a gap in their employment authorization and/or EAD because of USCIS' unprecedented processing times.

2. Existing Automatic Extension Period of Up to 180 Days Temporarily Not Sufficient

DHS is aware of the importance of employment authorization and EADs as evidence of employment authorization for applicants' and their families' livelihoods, as well as their U.S. employers' continuity of operations and financial health. DHS is also aware of the potential detrimental impact that gaps in employment authorization may have on an applicant's eligibility for future immigration benefits, should the applicant engage in unauthorized employment during the gap,

117

and on the U.S. employer's responsibilities under the INA. DHS also acknowledges that the substantial increase in backlogs and prolonged processing times across USCIS-administered benefit requests are not the fault of applicants but have had and continue to have significant adverse consequences for applicants and employers awaiting a USCIS decision on pending Form I-765 renewal applications.

117

With certain exceptions, if a noncitizen continues to engage in or accepts unauthorized employment, the individual may be barred from adjusting status to that of a lawful permanent resident under INA 245.

See

INA 245(c)(2) and (c)(8), 8 U.S.C. 1255(c)(2) and (c)(8).

As noted, the current 180-day automatic extension under 8 CFR 274a.13(d)(1) for certain applicants who have properly filed Form I-765 for renewal of their employment authorization and/or EADs is an insufficient time period to ensure against lapses in employment authorization and/or EAD validity.

118

In December 2020, the median processing time for Form I-765 renewal applications eligible for the automatic extension was 3.6 months (close to USCIS' processing goals), ranging from 2.5 months to 5 months.

119

At the end of December 2020, there were approximately 3,300 applicants whose Form I-765 renewal applications were still pending past their 180-day auto-extension period.

118

See

section II, Purpose of this Temporary Final Rule.

119

See

section II, Purpose of this Temporary Final Rule, Table 1. Recent Dramatic Growth in 50th and 93rd Percentile Processing Times for Form I-765 Renewal Applications Filed by Top Three Filing Categories.

However, Form I-765 processing times and Form I-765 renewal applications pending beyond the 180-day period increased rapidly in the second half of CY 2021 and continue to increase in CY 2022 despite backlog mitigation efforts. As of December 31, 2021, the processing time for EAD renewal applications (all categories) completed by USCIS ranged from 6.1 months (median) to 10.1 months (93rd percentile) and there were approximately 66,000 applicants whose Form I-765 renewal applications were still pending past their 180-day automatic extension period. This means that, as of December 31, 2021, approximately 66,000 applicants—at no fault of their own and because of circumstances currently faced by USCIS—were not authorized to work and/or no longer had a valid EAD to evidence their employment authorization,

120

potentially jeopardizing their families' livelihoods.

120

Of the 66,000 applicants, 63,000 fall into the C08, C09, and C10 categories and, therefore, are facing a gap of employment authorization. The remaining 3,000 applicants fall into the following EAD categories: Refugees (A03 under 8 CFR 274a.12(a)(3)), asylees (A05 under 8 CFR 274a.12(a)(5)), and withholding of deportation or removal beneficiaries (A10 under 8 CFR 274a.12(a)(10)). Such applicants are still authorized for employment incident to status but would no longer have a valid EAD. For purposes of this rule's analysis, DHS has determined that it is appropriate to include the 3,000 applicants who are employment authorized incident to status given their reasonable reliance on USCIS' timely issuance of their renewal EADs. Also, it is unknown how many applicants in this group have in their possession acceptable alternative documentation they can show their employers in order to maintain their employment (

e.g.,

Form I-94 or an unrestricted Social Security card together with an unexpired State-issued driver's license pursuant to 8 CFR 274a.2(b)(1)(v)). Moreover, through its public outreach efforts, DHS has learned that job loss has affected this group on account of the lack of sufficient documentation to present to employers for Form I-9 completion.

Table 6—Number of Form I-765 Renewals Pending Past Their 180-Day Auto-Extension Period

Date

Median processing time (months)

Renewals pending past 180-day period

December 31, 2020

3.6

3,300 renewal applications (approx.).

December 31, 2021

8.0

66,000 renewal applications (approx.).

This also means that a large majority of these workers, and their U.S. employers, would not be able to meet the verification or reverification requirement for completion of Employment Eligibility Verification (Form I-9),

121

resulting in terminations and incurring the costs of finding replacement workers, if possible. If DHS does not immediately increase the 180-day automatic extension period, the total number of applicants with renewal applications pending past the 180-day auto-extension period is expected to increase by approximately 14,500 per month.

122

This estimated monthly increase of 14,500 applicants is based on recent trends.

121

All U.S. employers must properly complete Form I-9 for each individual they hire for employment in the United States.

See

I-9, Employment Eligibility Verification USCIS web page,

https://www.uscis.gov/i-9

(last updated Apr 13, 2021).

122

As noted elsewhere in this preamble, the number of applicants who face expiration of the up-to-180-day automatic-extension each month is approximately 30,000. However, as some applicants who are already past the 180-day automatic extension period will receive final adjudication of their application each month, the total number of those in the population past the 180-day period is expected to increase by 14,500 each month rather than by 30,000.

Although USCIS has been diligently trying to reduce the adjudication backlog and EAD processing times, USCIS is unable to quickly return to its processing goals due to the volume of pending cases, new filings that USCIS continues to receive, and time needed to increase staffing needs to meet existing demands. As of December 31, 2021, USCIS had approximately 520,000 pending EAD renewal requests in automatic extension-eligible categories and continues to receive approximately 55,000 additional Form I-765 applications in automatic extension-eligible categories per month. These additional renewal applications are adding to the current backlog, given that USCIS currently completes approximately 33,000-34,000 such requests per month. Further, as of November 6, 2021, 905 out of 8,721 (or, 10% of) officer positions allocated to the Field Office Directorate (FOD) and the Service Center Operations Directorate (SCOPS) were vacant and USCIS estimates it may take at least until the end of CY 2022 for USCIS to fill such vacancies.

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As mentioned above in section II.D.1, USCIS had approximately 3,000 vacancies, 905 of which were officer positions in FOD and SCOPS, the two directorates that adjudicate Form I-765 renewal applications filed in categories eligible for automatic extension of EADs. Even after USCIS fills an Immigration Services Officer (ISO) position, there is a delay between the time of hiring and the time the ISO is fully trained and able to complete adjudications to meet productivity targets.

The impact of the prolonged processing times is stark when considering the number of individuals who will lose employment authorization and/or EAD validity each month if immediate action is not taken. As indicated, the total number of renewal applications pending past the 180-day period, which was approximately 66,000 as of December

31, 2021, is expected to increase by approximately 14,500 each month; that monthly figure represents approximately 10,500 asylum applicants, 3,000 adjustment of status applicants, and 1,000 suspension/cancellation applicants per month.

DHS therefore has determined that an automatic extension period of up to 180 days at 8 CFR 274a.13(d) is temporarily no longer sufficient to meet its original purpose and goal for which it was implemented: To prevent and/or mitigate the risk of gaps in employment authorization and documentation for a majority of eligible applicants. Due to the presently insufficient staffing levels, which may take USCIS at least until the end of CY2022 to fill and additional time to train, USCIS may be unable to significantly increase its rate of completion in the immediate term, and therefore, currently may be unable to meaningfully reduce the volume of pending cases while also keeping pace with the inflow of Form I-765 filings. While USCIS will continue to explore ways to improve adjudicative efficiencies in the short and long term, USCIS expects Form I-765 backlogs will continue in the immediate future as it works to implement changes to improve Form I-765 processing efficiencies, hire and train new officers, and take additional steps to reduce the backlog and processing times. This temporary and extraordinary circumstance has created an emergent and urgent situation for noncitizens and U.S. employers as gaps in employment authorization and documentation have a highly detrimental impact on noncitizen workers and their U.S. employers. This is taking place at a time when such employers already are facing unprecedented workforce disruptions due to the COVID crisis, which further underscores the importance of immediate action.

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While the high unemployment rate has declined significantly, the United States is now experiencing high demand for labor as compared to the available supply of workers. As of February 2022, the labor force participation rate was at 62.3 percent, having recovered about 66 percent of what was lost at height of the COVID-19 pandemic compared with the February 2020 rate of 63.4 percent.

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According to the U.S. Bureau of Labor Statistics (BLS), on the last business day of January 2022, there were 11.3 million job openings and 6.3 million unemployed people.

See

U.S. Department of Labor, U.S. Bureau of Labor Statistics,

Job Openings and Labor Turnover—January 2022

(Mar. 9, 2022),

https://www.bls.gov/news.release/pdf/jolts.pdf;

U.S. Department of Labor, U.S. Bureau of Labor Statistics,

The Employment Situation—February 2022

(Mar. 4, 2022),

https://www.bls.gov/news.release/pdf/empsit.pdf.

From June 2021 through January 2022, the ratio of unemployed persons per job opening was below 1.0, meaning that there were more job openings than individuals seeking work. For context, there were roughly 0.8 unemployed persons per job opening in January and February 2020 before COVID. U.S. Department of Labor, U.S. Bureau of Labor Statistics,

Number of unemployed persons per job opening, seasonally adjusted

(Jan. 2007 through Jan. 2022),

https://www.bls.gov/charts/job-openings-and-labor-turnover/unemp-per-job-opening.htm

(last visited Mar. 14, 2022).