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

Federal RegisterApr 8, 2024

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 274a

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

RIN 1615-AC78

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

AGENCY:

U.S. Citizenship and Immigration Services, DHS.

ACTION:

Temporary final rule with request for comments.

SUMMARY:

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

DATES:

Effective dates:

This temporary final rule (TFR) is effective April 8, 2024, through September 20, 2027, except for the amendments to 8 CFR 274a.13(d)(5), which are effective from April 8, 2024 through October 15, 2025.

Submission of public comments:

Comments must be received on or before June 7, 2024.

ADDRESSES:

You may submit comments on the entirety of this temporary final rule package, identified by DHS Docket No. USCIS-2024-0002, through the Federal eRulemaking Portal:

https://www.regulations.gov

. Follow the website instructions for submitting comments. The electronic Federal Docket Management System will accept comments before midnight Eastern time on June 7, 2024.

Comments must be submitted in English, or an English translation must be provided. Comments that will provide the most assistance to USCIS in implementing these changes will reference a specific portion of the proposed rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change. Comments submitted in a manner other than as provided above, including emails or letters sent to DHS or U.S. Citizenship and Immigration Services (USCIS) officials, will not be considered comments on the TFR and may not receive a response from DHS. Please note that DHS and USCIS cannot accept any comments that are hand-delivered or couriered. In addition, USCIS cannot accept comments contained on any form of digital media storage devices, such as CDs/DVDs and USB drives. USCIS is also not accepting mailed comments at this time. If you cannot submit your comment by using

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:

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

SUPPLEMENTARY INFORMATION:

Public Participation

DHS invites you to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this temporary final rule. DHS also invites comments that relate to the economic, environmental, or federalism effects that might result from this temporary final rule. Comments must be submitted in English, or an English translation must be provided. Comments that will provide the most assistance to DHS will reference a specific provision of the temporary final rule, explain the reason for any recommended change, and include data, information, or authority that supports the recommended change. Comments submitted in a manner other than explicitly provided in this section, including emails or letters sent to USCIS or DHS officials, will not be considered comments on the TFR and may not receive a response.

In addition to seeking comments on all aspects of this TFR, DHS also invites the public to comment on the following:

• Whether DHS regulations should be revised to permanently lengthen the period of the automatic extension period to up to 540 days for employment authorization and/or EAD validity for eligible renewal applicants;

• Whether a different permanent extension period should be implemented, for some or all applicants covered by the automatic extension provision on either a temporary or permanent basis; and

• Whether other solutions should be considered to mitigate the risk of expiring employment authorization and/or EAD validity for some or all applicants covered by the automatic extension provision.

DHS also specifically seeks comments on the regulatory alternatives described in section III.C. and V.B. of this preamble.

Instructions

All submissions should include the agency name and DHS Docket No. USCIS-2024-0002 for this rulemaking. Providing comments is entirely voluntary. DHS will post all submissions, without change, to the Federal eRulemaking Portal at

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 and Security 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-2024-0002. You may also sign up for email alerts on the online docket to be notified when comments are posted or a subsequent rulemaking is published.

I. Executive Summary

A. Purpose and Summary of the Regulatory Action

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

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

B. Summary of Legal Authority

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

C. Summary of the TFR Provisions

This rule amends 8 CFR 274a.13(d) as follows:

• New 8 CFR 274a.13(d)(6): DHS is adding a new paragraph 8 CFR 274a.13(d)(6). With this new paragraph, DHS is temporarily increasing the regular automatic extension period for employment authorization and/or EAD validity of up to 180 days under 8 CFR 274a.13(d)(1) to a period of up to 540 days for renewal applicants eligible to receive an automatic extension.

• Amending existing 8 CFR 274a.13(d)(5): To avoid confusion between the automatic extension period granted under new 8 CFR 274a.13(d)(6) and existing 8 CFR 274a.13(d)(5), DHS is revising the heading of existing 8 CFR 274a.13(d)(5). 8 CFR 274a.13(d)(5) only applies to EAD renewal applications properly filed on or before October 26, 2023. The new heading will clearly reflect the date. DHS is neither extending nor otherwise amending 8 CFR 274a.13(d)(5).

D. Summary of Costs and Benefits

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

II. Background

USCIS' ability to process both initial and renewal EAD applications within USCIS' targeted processing times has been adversely impacted by a variety of unforeseeable and dynamic events and circumstances, described in the following sections. As a result, DHS has found it necessary to take actions to reduce the likelihood that certain applicants for renewal EADs experience unnecessary lapses in their employment authorization and/or proof of employment authorization because of USCIS processing delays and through no fault of their own. Such widescale lapses in employment authorization and EAD validity would result in substantial and unnecessary harm to noncitizens who timely filed for extensions of employment authorization, their families, their employers, and the public at large.

In 2021, a surge in EAD applications, coupled with operational challenges exacerbated by the COVID-19 pandemic, resulted in a significant increase in EAD application processing times. The EAD application processing times increased to such a level that the 180-day automatic extension of employment authorization for certain pending renewal EAD applications

was insufficient to prevent many renewal applicants from experiencing a lapse in employment authorization and/or documentation while their renewal applications remained pending with USCIS.

See

8 CFR 274a.13(d).

In May 2022, DHS published a temporary final rule (“2022 TFR”) that, for certain renewal EAD applications filed during a limited period that ended on October 26, 2023, increased the automatic extension period from up to 180 days to up to 540 days.

This measure helped minimize gaps in employment authorization and/or EAD validity for certain renewal EAD applicants, while giving USCIS a window of time to address its backlogs through operational and sub-regulatory measures. Those operational and sub-regulatory measures helped USCIS to work toward its goal of returning to regular processing times.

See

87 FR 26614 (May 4, 2022) (2022 TFR).

Although USCIS' efforts since the issuance of the 2022 TFR prevented a substantial number of renewal applicants from experiencing a lapse in their employment authorization and/or documentation, the processing times for renewal EAD applications are currently at such a level that the current 180-day automatic extension period for certain renewal EAD applications remains insufficient to prevent a large number of lapses in the coming months.

Accordingly, DHS is again taking steps to help prevent certain renewal EAD applicants from experiencing a lapse in their employment authorization, valid documentation of their employment authorization, or both, while their renewal applications remain pending. USCIS also continues to implement other solutions to return processing times to target levels, as detailed in section III.B of the preamble.

Without this 2024 TFR, approximately 800,000 renewal applicants will be in danger of losing their employment authorization and/or

documentation in the period beginning May 2024 and ending March 2026.

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

See

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

Bureau of Labor Statistics data show that, as of December 2023, there were 0.7 unemployed persons per job opening.

See

U.S. Department of Labor, U.S. Bureau of Labor Statistics, “Number of unemployed persons per job opening, seasonally adjusted,”

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

(last visited Feb. 6, 2024).

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

and on or before September 30, 2025.

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

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

A. Legal Authority

The Secretary of Homeland Security's (Secretary) authority for the regulatory amendments made in this TFR are found in various sections of the Immigration and Nationality Act (INA or the Act), 8 U.S.C. 1101

et seq.,

and the Homeland Security Act of 2002 (HSA), Public Law 107-296, 116 Stat. 2135 (codified in part at 6 U.S.C. 101

et seq.

). General authority for issuing this TFR is found in section 103(a) of the INA, 8 U.S.C. 1103(a), which authorizes the Secretary to administer and enforce the immigration and nationality laws and establish such regulations as the Secretary deems necessary for carrying out such authority, as well as section 102 of the HSA, 6 U.S.C. 112, which vests all of the functions of DHS in the Secretary and authorizes the Secretary to issue regulations.

Further authority for this TFR is found in:

Although several provisions of the INA discussed in this TFR refer exclusively to the “Attorney General,” such provisions are now to be read as referring to the Secretary of Homeland Security by operation of the HSA.

See

6 U.S.C. 202(3), 251, 271(b), 542 note, 557; 8 U.S.C. 1103(a)(1) and (g), 1551 note;

Nielsen

Preap,

139 S. Ct. 954, 959 n.2 (2019).

• Section 208(d)(2) of the INA, 8 U.S.C. 1158(d)(2), which authorizes the Secretary to grant employment authorization to applicants for asylum if 180 days have passed since filing an application for asylum;

• Section 214 of the INA, 8 U.S.C. 1184, including section 214(a)(1) of the INA, 8 U.S.C. 1184(a)(1), which authorizes the Secretary to prescribe, by regulation, the time and conditions of the admission of nonimmigrants;

• Section 244(a)(1)(B) of the INA, 8 U.S.C. 1254a(a)(1)(B), which states that the Secretary shall authorize employment and provide evidence of employment authorization for noncitizens who have been granted Temporary Protected Status;

• Section 274A(h)(3)(B) of the INA, 8 U.S.C. 1324a(h)(3)(B), which recognizes the Secretary's authority to extend employment authorization to noncitizens in the United States; and

• Section 101(b)(1)(F) of the Homeland Security Act, 6 U.S.C. 111(b)(1)(F), which establishes as a primary mission of DHS the duty to “ensure that the overall economic security of the United States is not diminished by efforts, activities, and programs aimed at securing the homeland.”

B. Legal Framework for Employment Authorization

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

Whether a noncitizen is authorized to work in the United States depends on the noncitizen's immigration status or other conditions that may permit employment authorization (for example, having a pending application for asylum or a grant of deferred action). DHS regulations outline three classes of noncitizens who may be eligible for employment in the United States, as follows:

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

See

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

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

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 with a specific employer.

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.

See

8 CFR 274a.12(b).

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

See

8 CFR 274a.12(c);

Matter of Tong,

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

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

For certain eligibility categories listed in 8 CFR 274a.12(a) (the first class) and all eligibility categories listed in 8 CFR 274a.12(c) (the third class), as well as additional categories specified in form instructions, an EAD application must be properly filed with USCIS (with fee

or fee waiver, as applicable) to receive employment authorization and/or an EAD.

EADs issued under 8 CFR 274a.12(a) or (c) generally allow these noncitizens to work for any U.S. employer or engage in self-employment, subject to certain restrictions, as applicable. If an EAD application is granted under CFR 274a.12(a), the resultant EAD provides the noncitizen with proof of employment authorization incident to status or circumstance. Certain noncitizens may file EAD applications concurrently with related benefit requests if permitted by the form instructions or as announced by USCIS.

In such instances, the underlying benefit requests, if granted, would form the basis for an EAD or eligibility to apply for employment authorization. For eligibility categories listed in 8 CFR 274a.12(a) and (c), USCIS has the discretion to establish a specific validity period for the EAD.

See

8 CFR 103.2(a) and 8 CFR 274a.13(a). An applicant who is employment authorized incident to status (

e.g.,

asylees, refugees, TPS beneficiaries) may file an EAD application to request an EAD. Applicants who are filing within an eligibility category listed in 8 CFR 274a.12(c) must, by contrast, use the EAD application form to request both employment authorization and an EAD.

See

8 CFR 274a.13(a). For example, the spouse of an H-1B worker may file an EAD application at the same time as their Form I-539, Application to Extend/Change Nonimmigrant Status.

See

USCIS, DHS, “Employment Authorization for Certain H-4, E Dependent Spouses,”

https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/employment-authorization-for-certain-h-4-dependent-spouses

(last visited Dec. 4, 2023).

See

8 CFR 274.12(a) and (c).

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

a. Renewing Employment Authorization and/or EADs

Employment authorization and EADs generally are not valid indefinitely but instead expire after a specified period of time.

Generally, noncitizens within the eligibility categories listed in 8 CFR 274a.12(c) must obtain a renewal of employment authorization and their EADs before the expiration date stated on their current EADs, or they will lose their eligibility to work in the United States (unless, since obtaining their current EADs, the noncitizens have obtained an immigration status or belong to a class of individuals with employment authorization incident to that status or class, or obtain employment authorization based on another category).

The same holds true for some classes of noncitizens authorized to work incident to status whose EAD expiration dates coincide with the termination or expiration of their underlying immigration status. Other noncitizens authorized to work incident to status, such as asylees, refugees, and Temporary Protected Status (TPS) beneficiaries may have immigration status that confers employment authorization that continues past the expiration date stated on their EADs. Nevertheless, such noncitizens may wish to renew their EAD to have acceptable evidence of their continuous employment authorization for various purposes, such as presenting evidence of employment authorization and identity to their employers for completion of the Employment Eligibility Verification (Form I-9) process. Failure to renew their EADs prior to the expiration date may result in job loss if such noncitizens do not have or cannot present alternate acceptable evidence of employment authorization to show their employers, as employers who continue to employ noncitizens without employment authorization may be subject to criminal penalties and/or civil monetary penalties.

See

8 CFR 274a.13(b).

But see

8 CFR 274a.14 (setting forth the bases for termination or revocation of employment authorization).

See

8 CFR 274a.14(a)(1)(i).

The employee must present the employer with acceptable documents evidencing identity and employment authorization. The lists of acceptable documents can be found on the second page of the Form I-9.

See

USCIS, DHS, Form I-9, “Employment Eligibility Verification,”

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

(last visited Feb. 7, 2024). An employer that does not properly complete Form I-9, which includes reverifying continued employment authorization, or continues to employ an individual with knowledge that the individual is not authorized to work, may be subject to civil money penalties.

See

USCIS, DHS, “M-274 Handbook for Employers,” “11.8 Penalties for Prohibited Practices,”

https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274/110-unlawful-discrimination-and-penalties-for-prohibited-practices/118-penalties-for-prohibited-practices

(last visited Feb. 7, 2024). In addition, an employer who engages in a “pattern or practice” of employing unauthorized individuals may face criminal penalties under 8 U.S.C. 1324a(f). U.S. Immigration and Customs Enforcement has primary enforcement responsibilities for enforcement of the civil monetary penalties under Section 274A of the INA, 8 U.S.C. 1324a and Section 274C of the INA, 8 U.S.C. 1324c.

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

See

USCIS, DHS, Form I-765, “Instructions for Application for Employment Authorization,”

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

(last visited Feb. 7, 2024). In reviewing the EAD application, USCIS ensures that the fee was paid, a fee waiver was granted, or a fee exemption applies.

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

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

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

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

See, e.g.,

INA sec. 237(a)(1)(C), 8 U.S.C. 1227(a)(1)(C); 8 CFR 214.1(e).

See

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

See

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

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

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

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

See

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

See

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

Federal Register

See

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

To prevent gaps in employment authorization and/or documentation and related consequences for certain renewal applicants,

and in light of processing times and possible filing

surges,

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

To receive the automatic extension, an eligible renewal applicant must meet the following conditions:

See

80 FR 81899, 81927 (Dec. 31, 2015) (“DHS proposes to amend its regulations to help prevent gaps in employment authorization for certain employment-authorized individuals who are seeking to renew expiring EADs. . . . These provisions would significantly mitigate the risk of gaps in employment authorization and required documentation for eligible individuals, thereby benefitting them and their employers.”).

See

80 FR 81899, 81927 (Dec. 31, 2015) (“DHS believes that this time period [of up to 180 days] is reasonable and provides more than ample time for USCIS to complete the adjudication process based on USCIS' current 3-month average processing time for Applications for Employment Authorization.”);

id.

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

8 CFR 274a.13(d);

see also

81 FR 82398, 82455-82463 (Nov. 18, 2016) (AC21 Final Rule).

• The renewal applicant timely files an application to renew the employment authorization and/or EAD 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.

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

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 EAD renewal application).

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

See

8 CFR 274a.13(d)(1)(iii).

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

See

USCIS, DHS, “Automatic Employment Authorization (EAD) Extension,”

https://www.uscis.gov/working-in-the-united-states/information-for-employers-and-employees/automatic-employment-authorization-document-ead-extension

(last visited Feb. 7, 2023).

• Noncitizens admitted as refugees (A03);

See

8 CFR 274a.12(a)(3).

• Noncitizens granted asylum (A05);

See

8 CFR 274a.12(a)(5).

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

See

8 CFR 274a.12(a)(7).

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

See

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

• Noncitizens granted withholding of deportation or removal (A10);

See

8 CFR 274a.12(a)(10).

• Noncitizens granted TPS, regardless of the employment authorization category on their current EADs (A12);

See

8 CFR 274a.12(a)(12) or (c)(19).

• Noncitizen spouses of E-1/2/3 nonimmigrants (Treaty Trader/Investor/Australian Specialty Worker) (A17);

See

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

• Noncitizen spouses of L-1 nonimmigrants (Intracompany Transferees) (A18);

See

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

• Noncitizens who have properly filed applications for TPS and who have been deemed

prima facie

eligible for TPS under 8 CFR 244.10(a) and have received an EAD as a “temporary treatment benefit” under 8 CFR 244.10(e) and 274a.12(c)(19) (C19);

See

8 CFR 274a.12(c)(19).

• Noncitizens who have properly filed applications for asylum and withholding of deportation or removal (C08);

See

8 CFR 274a.12(c)(8).

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

See

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

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

See

8 CFR 274a.12(c)(10).

• Noncitizens who have filed applications for creation of record of lawful admission for permanent residence (C16);

See

8 CFR 274a.12(c)(16).

• Noncitizens who have properly filed legalization applications pursuant to section 210 of the INA, 8 U.S.C. 1160 (C20);

See

8 CFR 274a.12(c)(20).

• Noncitizens who have properly filed legalization applications pursuant to section 245A of the INA, 8 U.S.C. 1255a (C22);

See

8 CFR 274a.12(c)(22).

• Noncitizens who have filed applications for adjustment of status pursuant to section 1104 of the Legal Immigration Family Equity Act (C24);

See

8 CFR 274a.12(c)(24).

• Certain noncitizen spouses (H-4) of H-1B nonimmigrants with an unexpired Form I-94 showing H-4 nonimmigrant status (C26);

and

See

8 CFR 274a.12(c)(26).

• Noncitizens who are the principal beneficiaries or derivative children of approved Violence Against Women Act (VAWA) self-petitioners,

under the employment authorization category “(c)(31)” in the form instructions to the EAD application (C31).

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

INA sec. 204(a)(1)(D)(i)(II), (IV), (a)(1)(K), 8 U.S.C. 1154(a)(1)(D)(i)(II), (IV), (a)(1)(K).

The extension automatically terminates the earlier of up to 180 days after the expiration date of the EAD, or upon issuance of notification of a decision denying the renewal request.

An EAD that is expired on its face is considered unexpired when combined with a Form I-797C receipt notice indicating a timely filing of the application to renew the EAD.

Therefore, when the expiration date on the front of the EAD is reached, a noncitizen who is continuing in their employment with the same employer may present to their employer the Form I-797C receipt notice for the EAD application to show that their EAD has been automatically extended as evidence of continued employment authorization, and the employer must

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

See

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

See

8 CFR 274a.13(d)(4).

See

USCIS, DHS, “Completing Supplement B, Reverification and Rehires (formerly Section 3),”

https://www.uscis.gov/i-9-central/complete-correct-form-i-9/completing-supplement-b-reverification-and-rehires-formerly-section-3

(last visited Nov. 3, 2023);

see also

USCIS, DHS, “M-274 Handbook for Employers,” “5.2 Temporary Increase of Automatic Extension of EADs from 180 Days to 540 Days” (last visited Dec. 7, 2023).

USCIS generally recommends the filing of a renewal EAD application up to 180 days before the current EAD expires.

If the renewal application is granted, the employment authorization and/or EAD generally will be valid as of the date of approval of the application. If the application is denied, the automatically extended employment authorization and/or EAD generally is terminated on the day of the denial.

If the renewal application was timely and properly filed, but remains pending beyond the 180-day automatic extension period, the applicant must stop working upon the expiration of the automatically extended validity period and the employer must remove the employee from the payroll if the applicant/employee cannot provide other acceptable evidence of current employment authorization.

As a result, both the employee and the employer may experience the negative consequences of gaps in employment authorization and/or EAD validity. Since its promulgation in 2016, the automatic extension provision at 8 CFR 274a.13(d) has helped to minimize the risk of these negative consequences for applicants who are otherwise eligible for the automatic extension and their employers.

See

USCIS, DHS, “I-765, Application for Employment Authorization,”

https://www.uscis.gov/i-765

(last visited Jan. 19, 2024); USCIS, DHS, “Employment Authorization Document,”

https://www.uscis.gov/green-card/green-card-processes-and-procedures/employment-authorization-document

(last visited Dec. 7, 2023);

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).

C. 2022 Temporary Final Rule

1. Overview

In 2022, processing times for EAD applications had increased due to operational challenges that were exacerbated by the emergency measures USCIS employed to maintain its operations through the height of the COVID-19 pandemic in 2020, combined with a sudden increase in EAD application filings. The up to 180-day automatic extension period for renewal EAD applicants' employment authorization and/or EADs was no longer sufficient to prevent lapses in employment authorization for these applicants.

To mitigate the impact of these operational challenges, on May 4, 2022, DHS published a TFR titled “Temporary Increase of the Automatic Extension Period of Employment Authorization and Documentation for Certain Renewal Applicants” (2022 TFR) in the

Federal Register

The rule temporarily amended DHS regulations at 8 CFR 274a.13(d) by adding a new paragraph 8 CFR 274a.13(d)(5), which lengthened the automatic extension period provided in that section from up to 180 days to up to 540 days for those categories described in the TFR, upon timely filing of an EAD renewal application.

That increase was available to eligible renewal applicants whose EAD applications were pending as of May 4, 2022, including those applicants whose employment authorization had already lapsed following the initial 180-day extension period, and to eligible applicants who filed a renewal EAD application during the 540-day period beginning on or after May 4, 2022, and ending October 26, 2023.

On October 27, 2023, the automatic extension renewal period reverted to 180 days (the automatic extension period under 8 CFR 274a.13(d)(1)) for eligible renewal EAD applications filed on or after October 27, 2023.

87 FR 26614 (May 4, 2022).

See

8 CFR 274a.13(d);

see also

87 FR 26614, 26651 (May 4, 2022).

See id.

See

87 FR 26614, 26631 (May 4, 2022).

2. Public Comments

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

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

Of the comments listed above, one submission expressed opposition, 94 submissions expressed support, and 83 expressed a mixed opinion (

e.g.,

general support with a request for further changes). Many expressed their appreciation for the rule and commented on the positive impacts the rule had not only on applicants, their families, and their support systems, but also on employers and the economy. Many who supported the rule overall also expressed that DHS should have applied the rule more broadly by expanding certain aspects of the rule (

e.g.,

to cover all classes of noncitizens) or requested revisions to the rule (

e.g.,

that the effective period of the rule be longer, or that it be issued as a final rule that would make the increased extension permanent, not temporary). A comment submitted by an advocacy group noted that USCIS should make permanent the 540-day automatic extension because it was unlikely that USCIS would fully eliminate USCIS' backlog owing to circumstances beyond USCIS' control, including a lack of funding and adequate staffing. The group added that USCIS could publish a final rule to make the 540-day automatic extension period permanent as an appropriate exercise of USCIS' rulemaking authority under the Administrative Procedure Act (APA) because USCIS requested comments in connection with the 2022 TFR.

Another advocacy group noted that making permanent the automatic extension period of 540 days would be more efficient and promote predictability. Some commenters suggested that DHS consider alternative regulatory or sub-regulatory actions. Some addressed other concerns, including clarity, outreach, and coordination with other departments.

The group cited

Little Sisters of the Poor Saints Peter & Paul Home

Pennsylvania,

140 S.Ct. 2367, 2384-85 (2020) (holding that an interim final rule's “request for comments readily satisfied the APA notice requirements.”).

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

processing delays. DHS also took various sub-regulatory actions, as described in section III.B of this preamble, to further address USCIS processing delays and minimize the risk of potential gaps in employment authorization and/or documentation.

Lastly, DHS considered the comment in opposition to the rule that asserted that DHS only provided a cursory justification for the TFR and questioned DHS's authority to issue the TFR, its consideration of the impact on U.S. workers, and its justification for claiming good cause to issue the rule without the notice and comment procedure required under the APA. DHS disagrees with these various assertions, as the preamble to the 2022 TFR included a detailed explanation of the legal authority and justification for the rulemaking, as well as the basis for foregoing notice and comment based on the good cause exception.

Nevertheless, DHS included additional details in this rule to further clarify the legal authority for this TFR and has provided additional explanation regarding the consideration of U.S. workers and potential impacts, if any, of this TFR on U.S. workers. Specifically, as explained in this preamble, this TFR is limited to certain renewal EAD applicants—

i.e.,

those who have already been authorized for employment—and automatically extending their employment authorization and/or EAD, so that they may continue to perform the services they are already doing will have minimal adverse impact, if any, on other U.S. workers.

Moreover, in providing benefits for renewal applicants and their U.S. employers, this rule indirectly benefits U.S. workers by protecting the financial stability and continuity of operations for affected U.S. employers. DHS also provides a detailed explanation, including citation to cases cited by the commenter, regarding the APA's good cause exception and its application to this TFR.

Among other things, the commenter asserted that section 274A(h)(3)(B) of the INA, 8 U.S.C. 1324a(h)(3)(B) was “merely definitional” and did not confer authority on DHS to grant or extend employment authorization to certain classes of noncitizens covered by the rule. DHS disagrees with the commenter's assertion. DHS further discusses the relevant authorities earlier in section II of this preamble.

See also, e.g., Washington Alliance of Technology Workers

DHS,

50 F.4th 164, 191-192 (D.C. Cir. 2022) (“What matters is that section 1324a(h)(3) expressly acknowledges that employment authorization need not be specifically conferred by statute; it can also be granted by regulation.”).

See

section V.B.3.d., Module D. Other Impacts. As explained, this rule extends current employment authorization for individuals who are at risk of losing such authorization solely because of USCIS processing delays; it does not grant new work authorization to additional persons.

See id.

According to the most recent data (applicable to October 2023), the U.S. labor force stands at 167,728,000. The maximum population of about 824,000 represents 0.50 percent of the national labor force, approximately 554,000 of which would potentially not lapse as a result of the action being taken.

See id.

Additionally, according to the Bureau of Labor Statistics data, and as of December 2023, there were 0.7 unemployed persons per job opening.

See

U.S. Department of Labor, U.S. Bureau of Labor Statistics, “Number of unemployed persons per job opening, seasonally adjusted,”

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

(last visited Feb. 6, 2024). Thus, data indicates that there are currently more jobs than available employees. As such, DHS believes, based on the nature of this rulemaking as well as current economic conditions, that the hypothetical possibility of some U.S. workers replacing workers who would temporarily lose employment authorization in the absence of this rulemaking is not a compelling reason to allow widespread losses of employment authorization due to USCIS processing delays.

All comments submitted in response to the 2022 TFR have been reviewed and considered by DHS in the development of this 2024 TFR.

3. Impact of the 2022 TFR

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

III. Purpose of This Temporary Final Rule

DHS has determined that the up to 180-day automatic extension under 8 CFR 274a.13(d) is currently not enough time for the growing number of renewal EAD applicants. Without this TFR, hundreds of thousands of renewal EAD applications will remain pending beyond the 180-day automatic extension period, resulting in applicants losing employment authorization and/or EAD validity. The grave situation that many renewal applicants (and their families) and their employers will imminently or soon face without this action is not the result of the applicants' actions but is instead the result of several converging factors affecting USCIS operations. These factors, as described in detail later in this section, have resulted in a significant increase in USCIS processing times for several categories of renewal EAD applications.

Based on these factors, DHS has determined that the 180-day automatic extension provision is currently insufficient to protect applicants, their families, and their employers as was originally intended. If USCIS does not take immediate action, approximately 800,000 EAD renewal applicants will be in danger of experiencing a gap in employment authorization and/or EAD validity in the approximately 2-year period beginning May 2024.

Such widescale lapses in employment authorization and EAD validity would result in substantial and unnecessary harm to noncitizens who timely filed for extensions of employment authorization, their families, their employers, and the public at large. Approximately 80 percent of those renewal applications will be pending asylum applicant (C08) EADs. The remaining 20 percent will primarily be adjustment applicant (C09) and cancellation of removal (C10) EADs.

Therefore, to avert gaps in employment authorization and/or EAD validity for certain renewal EAD applicants and the harmful effects caused by such lapses, DHS is temporarily amending existing DHS regulations to increase the automatic extension period from to up to 540 days from the expiration date stated on their EADs.

See

section V.B.2. Table 6 of the Regulatory Impact Analysis.

See

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

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

A. Sudden Increase in EAD Applications and Associated Operational Challenges

1. Comparing Fiscal Year (FY) 2023 Receipts to FY 2022 Receipts

The most recent and significant contributing factor to the severe backlog and increased processing times for renewal EAD applications is the substantial increase in the number of initial EAD applications based on pending asylum applications (C08) that began in March 2023. This surge and sustained increase in receipts during FY 2023

substantially increased processing times for renewal EAD applications because USCIS was required to prioritize adjudication of certain initial EAD applications over other applications such as renewal EAD applications.

For the beginning of FY 2023 until March 2023, USCIS averaged 160,000 initial EAD application receipts per month. In March 2023, initial EAD application receipts spiked to over 250,000. For the remainder of FY 2023, USCIS averaged 220,000 initial EAD application receipts per month. The EAD category with the largest growth of initial receipts in the second half of FY 2023 was C08 (pending asylum applications).

See section III.A.2.a of this preamble for more information on this requirement to prioritize initial EAD applications in the C08 category (pending asylum applications).

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

Table 1A—Initial and Renewal EAD Applications

Fiscal

year

EAD

applications

Difference

2022

2,330,000

2023

3,490,000

50 percent higher than 2022.

Table 1B—Initial EAD Applications

Fiscal

year

EAD

applications

Difference

2022

1,340,000

2023

2,370,000

77 percent higher than 2022.

Table 1C—Renewal EAD Applications

Fiscal

year

EAD

applications

Difference

2022

990,000

2023

1,120,000

13 percent higher than 2022.

While overall EAD application filings increased in FY 2023, USCIS received a substantial increase in filings in the second half of the fiscal year. USCIS received a spike of nearly 100,000 EAD application filings in March 2023, resulting in a monthly total well over 300,000. However, USCIS received approximately 61,000 fewer EAD applications the following month in April 2023, underscoring the dynamic and variable nature of EAD filings at that time.

As shown in Figure 1 below, the primary drivers in the growth of EAD applications in FY 2023 (both initials and renewals) were EAD applications based on pending asylum applications (C08), TPS (A12/C19), and parole (C11).

Figure 1. I-765 Receipts by Major Eligibility Category

ER08AP24.000

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

Consequently, the efforts USCIS undertook to improve its

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

See

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

see

section III.C of this preamble.

To address the unexpectedly high volume of incoming receipts, USCIS increased officer hours expended on initial C08 EAD applications from 116,000 in FY 2022 to 361,000 in FY 2023, an increase of approximately 245,000 hours. The increase in officer hours was comprised of straight time

(95,000 hours in FY 2022 to 268,000 hours in FY 2023, an increase of 173,000 hours or 282 percent) and overtime (21,000 hours in FY 2022 to 93,000 hours in FY 2023, an increase of 72,000 hours or 443 percent). To achieve this increase in hours, USCIS reassigned officers from other workloads and hired new staff.

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

For staff transfers from other product lines to initial C08 EAD applications, USCIS first utilized staff that previously worked on C08 renewals because they were already trained on C08 EAD processing. When this was insufficient to meet the court-ordered 30-day processing requirement for C08 EAD initial applications, USCIS reassigned personnel from other product lines and trained them to work on C08 EAD processing.

This court-ordered prioritization of initial C08 EAD applications over other applications has negatively affected renewal EAD processing times because USCIS was unable to dedicate sufficient officer hours to keep pace with renewal EAD applications. To help address this issue, USCIS increased officer hours from 92,000 in FY 2022 to 113,000 in FY 2023 for renewal C08 EAD applications. Despite this increase of 21,000 officer hours, USCIS has been unable to keep up with its volume of renewal C08 EAD applications. As of February 2024, the 80th percentile processing time

for renewal C08 EAD applications was 16 months. USCIS is also behind in its target for adjudications of other automatic extension categories, including C09 (pending adjustment of status application, 7.5 months), C10 (suspension of deportation, 16.3 months), A12 (TPS, 11.2 months), A5 (asylee, 4.8 months), and A10 (granted withholding of deportation or removal, 6.6 months).

The processing times displayed on the USCIS website is the amount of time it took USCIS to complete 80 percent of adjudicated cases over the last 6 months. “Processing time is defined as the number of days (or months) that have elapsed between the date USCIS received an application, petition, or request and the date USCIS completed the application, petition, or request (that is, approved or denied it) in a given six-month period.”

See

USCIS, DHS, “Case Processing Times,”

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

(last visited January 19, 2024).

As is explained in this preamble, EAD application processing times and the number of pending EAD applications have not sufficiently improved, and despite USCIS' multiple operational and sub-regulatory efforts to reduce the backlog, ongoing and dynamic circumstances, which are outside of USCIS' control, have prevented USCIS from keeping up with the adjudicatory workload.

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

Table 2—Pending EAD Applications by Month

Month

All EAD

applications

Auto-

extension

renewals

Sep 2023

1,490,000

534,000

Oct 2023

1,510,000

504,000

Nov 2023

1,500,000

474,000

Dec 2023

1,470,000

448,000

Jan 2024

1,440,000

457,000

Feb 2024

1,400,000

439,000

Source: DHS, USCIS, OPQ, CLAIMS3, ELIS, retrieved March 15, 2024.

2. Effect of Operational Challenges on EAD Application Adjudications

a. Operational Challenges Associated With Initial EAD Application Filings by Pending Asylum Applicants (C08)

The operational challenges associated with the recent surge in EAD applications has primarily

been driven by initial EAD applications by individuals with pending asylum applications (C08).

In FY 2022, USCIS received 266,036 initial C08 applications. In FY 2023, receipts dramatically increased to 802,284. The increase in initial C08 EAD applications placed a substantial strain on USCIS' adjudicative resources due to the high volume of cases and, as discussed in this section, the stringent 30-day timeline in which USCIS must, by regulation and court order, adjudicate these applications.

Other factors related to EAD processing have affected USCIS' workload and personnel, such as processing EADs for noncitizens who were paroled after scheduling an appointment through CBP One or through the Cuban, Haitian, Nicaraguan, and Venezuelan parole processes. However, these processes have not significantly compounded the pressures on EAD renewal processing, and they do not alter USCIS' determination that the primary factor leading to longer processing times for renewal EAD applications is the sudden and sustained increase in initial applications for EADs in the C08 category, which must be adjudicated within 30 days.

See

section III.A.2 of this preamble for a detailed discussion of the operational effects of the C08 initial applications.

Currently, pending asylum applicants may not be granted employment authorization until 180 days after the filing of the application for asylum. INA sec. 208(d)(2), 8 U.S.C. 1158(d)(2). Pending asylum applicants requesting employment authorization under the C08 category may file their EAD applications once the asylum application has been pending for 150 days. 8 CFR 208.7(a)(1).

In addition to increased EAD filings, EAD processing overall also has been affected by litigation regarding two rules, published in 2020, that amended the regulations governing EAD applications associated with asylum applications.

The regulation at 8 CFR 208.7(a)(1), which was originally promulgated in 1994,

requires USCIS to adjudicate initial C08 EAD applications within 30 days of filing.

However, on June 22, 2020, DHS published a final rule titled “Removal of 30-day Processing Provision for Asylum Applicant-Related Form I-765 Employment Authorization Applications”, which amended 8 CFR 208.7(a)(1) to remove the 30-day

processing requirement.

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

See

59 FR 62284 (Dec. 5, 1994).

On July 26, 2018, in

Rosario

USCIS,

the U.S. District Court for the Western District of Washington granted summary judgment against the government and issued an order requiring USCIS to comply with the 30-day regulatory timeline at 8 CFR 208.7.

See

365 F. Supp. 3d 1156 (W.D. Wash. 2018).

See

85 FR 37502 (June 22, 2020). DHS issued this final rule after having issued a proposed rule, seeking public comments.

See

84 FR 47148 (Sept. 9, 2019).

See

85 FR 38532 (June 26, 2020). This final rule was promulgated after publishing a notice of proposed rulemaking.

See

84 FR 62374 (Nov. 14, 2019).

Litigation followed the publication of these two rules (“2020 Asylum EAD Rules”), including

CASA

in the U.S. District Court for the District of Maryland, and

Asylumworks

in the U.S. District Court for the District of Columbia. On September 11, 2020, the court in

CASA

imposed a preliminary injunction requiring that USCIS not apply the 2020 Asylum EAD Rules to members of CASA and Asylum Seeker Advocacy Project organizations. On February 7, 2022, the U.S. District Court for the District of Columbia issued an order in

Asylumworks

vacating the 2020 Asylum EAD Rules in their entirety.

On September 22, 2022, DHS published a final rule titled “Asylum Application, and Employment Authorization for Applicants; Implementation of Vacatur”

that removed the changes made by the 2020 Asylum EAD Rules, restoring the regulatory text that predated the 2020 Asylum EAD Rules and thus implementing the court order in

Asylumworks.

See CASA de Maryland, Inc.

Wolf,

486 F. Supp. 3d 928 (D. Md. 2020).

See Asylumworks

Mayorkas,

590 F. Supp. 3d 11 (D.D.C. Feb. 7, 2022).

Asylumworks

Mayorkas,

590 F. Supp. 3d 11 (D.D.C. Feb. 7, 2022) (“

Asylumworks

vacatur”). The vacatur decision in

Asylumworks

effectively mooted the

CASA

case. The

CASA

court eventually acknowledged the case had become moot on May 18, 2023, when it granted the government's motion to dismiss.

See CASA de Maryland, Inc.

Mayorkas,

No. 8:20-CV-2118-PX, 2023 WL 3547497 (D. Md. May 18, 2023).

See

87 FR 57795 (Sept. 22, 2022).

As a result of the

Asylumworks

court order, since February 7, 2022, USCIS has been required to process initial EAD applications for all asylum applicants within 30 days of filing. While the court order required a return to a regulatory requirement that existed until 2020, the burden created by the court's order was significant and continues to affect overall EAD processing today.

Following the

Asylumworks

vacatur, at the end of February 2022, there were 93,639 pending cases to which the 30-day processing requirement applied. To address the backlog of cases and comply with the court's order, USCIS worked to increase resources for the entire initial C08 EAD application workload, including adding staff (pulling from other workloads as well as new hires) and offering overtime.

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

In particular, USCIS has added staff dedicated to the adjudication of C08 initial EAD applications by reassigning and training experienced officers from other portfolios and assigning new hires to this portfolio. In addition, USCIS offered overtime to all officers working C08 initial EAD applications.

As a result of these efforts, USCIS maintained higher levels of completions than have occurred since 2017, resulting in the significant reduction of total C08 initial EAD applications pending over 30 days. USCIS expended 68,000 hours on C08 initial EAD applications in FY 2021, 116,000 hours in FY 2022, and 361,000 hours in FY 2023. USCIS expended 245,000 more officer hours in FY 2023 than FY 2022 adjudicating C08 initial EAD applications. Some of these hours could have gone to other workloads, including renewal EAD applications.

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

b. Impact of the Significant Increase in Referrals to USCIS for Credible Fear Assessments

As DHS noted in 2023, economic and political instability around the world has been fueling high levels of global migration, including in the Western Hemisphere.

For example, in December 2022, U.S. Border Patrol (USBP)

encountered approximately 222,000 noncitizens between ports of entry, then second only to May 2022 (approximately 224,000 encounters). Daily encounters averaged 7,152 in that month (as compared to the daily average of 1,265 in the immediate pre-pandemic period, 2014-2019).

The Department estimated, based on April 2023 projections and planning models, that the number of daily encounters could rise to approximately 11,000 per day.

The Department announced sweeping new measures to address the anticipated further increase in migration, including a new rule that introduced a rebuttable presumption of asylum ineligibility for certain noncitizens

and a surge in resources to expeditiously process and remove individuals who arrive at the southwest border without a lawful basis to remain.

See

88 FR 31314, 31314-31315 (May 16, 2023). Analysis by the DHS Office of Immigration Statistics (OIS) found that even while the Centers for Disease Control and Prevention's (CDC) Title 42 public health Order had been in place, encounters with noncitizens attempting to cross the United States' southwest border without authorization has been high.

See

88 FR at 31315. The “Title 42 public health Order” issued by CDC under 42 U.S.C. 265, was in effect from March 20, 2020 until May 11, 2023 and suspended the introduction into the United States of certain persons who, due to the existence of COVID-19 in countries or places from which persons were traveling, created a serious danger of the introduction of such disease into the United States.

See

85 FR 17060 (Mar. 26, 2020). The processes usually applicable under the INA, Title 8 of the U.S.C., generally did not apply to cover noncitizens while the Order was in effect.

USBP is the component of U.S. Customs and Border Protection (CBP) within DHS responsible for U.S. border security between ports of entry. USBP's mission is to detect and prevent the illegal entry of individuals into the United States.

See

CBP, DHS, “Along the U.S. Borders,”

https://www.cbp.gov/border-security/along-us-borders

(last visited Mar. 7, 2024).

See

88 FR 31314, 31315 (May 16, 2023).

See

88 FR 31314, 31316 (May 16, 2023).

See

88 FR 31314, 31314 (May 16, 2023).

See

DHS, Fact Sheet: U.S. Government Announces Sweeping New Actions to Manage Regional Migration (Apr. 27, 2023),

https://www.dhs.gov/news/2023/04/27/fact-sheet-us-government-announces-sweeping-new-actions-manage-regional-migration

(last visited Mar. 11, 2024).

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

With this increase in encounters at the southwest border, there has also been an increase in referrals to USCIS for credible fear screenings

of individuals

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

See

Southwest Land Border Encounters at

https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters

(last visited Mar. 7, 2024).

Under the INA, certain noncitizens arriving in the United States who are found to be inadmissible under either section 212(a)(6)(C) of the INA, 8

U.S.C. 1182(a)(6)(C) (misrepresentation) or section 212(a)(7) of the INA, 8 U.S.C. 1182(a)(7) (for failure to meet documentation requirements for admission), may be removed from the United States without a further hearing or review (expedited removal) unless the noncitizen indicates either an intention to apply for asylum under section 208 of the INA, 8 U.S.C. 1158, or expresses a fear of persecution or torture.

See

INA sec. 235(b)(1)(A)(i), (iii), 8 U.S.C. 1225(b)(1)(A)(i), (iii); 8 CFR 235.3(b)(4). If such a noncitizen indicates an intention to apply for asylum or expresses a fear of persecution, torture, or of returning to their home country, the immigration officer refers the noncitizen for an interview with a USCIS asylum officer, who will determine if the noncitizen has a credible fear of persecution in his or her country of nationality or last habitual residence.

See

INA sec. 235(b)(1)(A), 8 U.S.C. 1225(b)(1)(A). If the USCIS asylum officer determines the noncitizen has a credible fear of persecution or torture, the noncitizen may apply for asylum and remain in the United States until a final determination is made on the asylum application by an immigration judge or, in some cases, by an asylum officer.

See

generally INA sec. 235(b), 240, 8 U.S.C. 1225(b), 1229a;

see also

8 CFR 208.2, 208.30 and 1208.30. The HSA grants to DHS the authority to adjudicate affirmative asylum applications—

i.e.,

applications for asylum filed with DHS for individuals not in removal proceedings—and authority to conduct credible fear interviews, make credible fear determinations in the context of expedited removal, and establish procedures for further consideration of asylum applications after an individual is found to have a credible fear.

See

6 U.S.C. 271(b)(3); INA sec. 235(b)(1)(B), 8 U.S.C. 1225(b)(1)(B).

See

USCIS, DHS, Asylum Division Monthly Statistics Report, Fiscal year 2023, October 2022 to September 2023,

https://www.uscis.gov/sites/default/files/document/data/asylumfiscalyear2023todatestats_230930.xlsx

(last visited Nov. 27, 2023).

The Directorate at USCIS that processes these claims, the Refugee, Asylum and International Operations Directorate (“RAIO”), had insufficient staff to accommodate such increased volume. To address the impact of these high numbers of credible fear referrals from the southwest border on existing asylum and credible fear procedures, USCIS has been detailing USCIS personnel, including officers who adjudicate EAD applications, to the USCIS RAIO directorate for up to 120 days to conduct credible fear screenings.

However, because only an immigration officer who is also an “asylum officer,” as defined at section 235(b)(1)(E) of the Act, 8 U.S.C. 1225(b)(1)(E), may conduct credible fear screenings, USCIS had to ensure that any non-asylum officers received the necessary asylum officer training before they could start on the detail.

Thus, many USCIS detailees were required to take a full-time asylum officer training course lasting several weeks. Having had to divert adjudicatory resources by having adjudicators detailed to the credible fear process created a significant operational strain in the renewal EAD adjudication resulting in an increase of processing times.

Due to the ongoing need for additional asylum officers and credible fear interviews, USCIS continues to solicit for detailees across all USCIS components.

See

DHS, “Fact Sheet: U.S. Government Announces Sweeping New Actions to Manage Regional Migration,”

https://www.dhs.gov/news/2023/04/27/fact-sheet-us-government-announces-sweeping-new-actions-manage-regional-migration

(last updated May 11, 2023) (“DHS and the Department of Justice (DOJ) are also surging asylum officers and immigration judges, respectively, to complete immigration proceedings at the border more quickly.”). Approximately 157 immigration officer FTEs participated in a credible fear detail in FY 2023, and approximately 212 FTEs participated from May 2023 to January 2024.

See

INA sec. 235(b)(1)(B)(i) and (b)(1)(e), 8 U.S.C. 1225(b)(1)(B)(i) and (b)(1)(e); 8 CFR 208.1(b). As required by law, asylum officers receive special training, including training on international human rights law, non-adversarial interview techniques, and country conditions information.

On October 20, 2023, the Administration requested $755 million in supplemental funding from Congress for USCIS to hire additional officers to adjudicate an increase in asylum filings and address the backlog in processing employment authorization applications and immigration benefit requests.

See

Letter regarding critical national security funding needs for FY 2024,

https://www.whitehouse.gov/wp-content/uploads/2023/10/Letter-regarding-critical-national-security-funding-needs-for-FY-2024.pdf.

Congress has not fulfilled that request as of March 11, 2024.

Positive credible fear determinations also create a downstream increase in applications for employment authorization, as these individuals may apply for asylum before the Executive Office for Immigration Review, which renders them eligible to apply for employment authorization after the asylum application has been pending for 150 days.

c. Impact of Affirmative and Defensive Asylum Filing Surges and Backlogs and the Effect on C08 Renewals

As noted above, the recent surge in EAD applications has primarily been driven by initial EAD applications filed by individuals with pending asylum applications (C08). USCIS received historic levels of affirmative asylum applications in FY 2022 and FY 2023. In FY 2022, USCIS received more than 240,600 affirmative asylum applications.

In FY 2023, USCIS received more than 454,300 affirmative asylum applications.

Despite efforts to adjudicate these pending applications, backlogs for both affirmative (filed with USCIS) and defensive (filed with the Executive Office for Immigration Review (EOIR)) asylum applications have grown. Specifically, as of September 30, 2023, over 1.062 million affirmative asylum applications were pending with USCIS and 937,000 total asylum applications were pending before EOIR, respectively. Owing to these backlogs, USCIS has seen an increase in C08 renewal EAD applications. Because initial C08 EADs issued prior to September 2023 were valid for a period of 2 years, the backlog in asylum applications at USCIS and EOIR is projected to result in over 770,000 C08 renewal EAD application filings during the effective period of this TFR.

See

USCIS, DHS, Asylum Division Monthly Statistics Report. Fiscal Year 2022. October 2021 to September 2022,

https://www.uscis.gov/sites/default/files/document/data/AsylumFiscalYear2022ToDateStats.xlsx

(last visited Nov. 27, 2023).

See

USCIS, DHS, Asylum Division Monthly Statistics Report. Fiscal year 2023. October 2022 to September 2023,

https://www.uscis.gov/sites/default/files/document/data/asylumfiscalyear2023todatestats_230930.xlsx,

(last visited Nov. 27, 2023).

See

TFR Modeling Methodology.

3. Additional Designations for Temporary Protected Status

Over the course of FY 2022 and FY 2023, the Secretary of Homeland Security, following consideration of relevant country conditions and other appropriate factors and in consultation with interagency partners, designated, redesignated, and extended the designation of several foreign countries for TPS under section 244 of the INA, 8 U.S.C. 1254a. There are currently 16 foreign countries with active TPS designations.

TPS provides temporary protection from removal and employment authorization to eligible nationals of designated countries present in the United States. The Secretary may designate a country for TPS if the conditions in a country prevent the country's nationals from returning safely due to ongoing armed conflict or extraordinary and temporary conditions or render the country temporarily unable to handle adequately the return of its nationals due to an environmental disaster that has resulted in a substantial but temporary disruption in living conditions.

USCIS is the designated entity within DHS to administer the TPS program.

For a list of designated countries, see

https://www.uscis.gov/humanitarian/temporary-protected-status

(last visited Nov. 7, 2023).

See

INA secs. 244(b)(1)(A)-(C); 8 U.S.C. 1254a(b)(1)(A)-(C).

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

or after their TPS application is approved.

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

100

See

INA sec. 244(a)(4), 8 U.S.C. 1254a(a)(4); 8 CFR 244.5, 274a.12(c)(19).

100

See

INA sec. 244(a)(1)(B), 8 U.S.C. 1254a(a)(1)(B); 8 CFR 244.12, 274a.12(a)(12).

Over the course of FY 2022 and FY 2023, the Secretary newly designated five countries for TPS: Afghanistan,

101

Cameroon,

102

Ethiopia,

103

Sudan,

104

and Ukraine

105

because of humanitarian concerns and instability in these countries. These initial designations allowed nationals of these countries who were already in the United States to remain in the United States and apply for EADs. During this same period, the Secretary extended and redesignated for TPS Burma,

106

Haiti,

107

Syria,

108

Somalia,

109

South Sudan,

110

and Yemen,

111

which allowed existing TPS beneficiaries to re-register for TPS and apply for renewal of their EADs, and allowed additional nationals present in the United States from these countries to apply for TPS to remain in the United States and apply for EADs. The Secretary also extended the TPS designation for El Salvador,

112

Honduras,

113

Nicaragua,

114

Nepal,

115

and Venezuela,

116

thereby allowing existing TPS beneficiaries to re-register for TPS and apply for renewal of their EADs.

101

87 FR 30976 (May 20, 2022).

102

87 FR 34706 (June 7, 2022).

103

87 FR 76074 (Dec. 12, 2022).

104

87 FR 23202 (Apr. 19, 2022).

105

87 FR 23211 (Apr. 19, 2022).

106

87 FR 58515 (Sept. 27, 2022).

107

88 FR 5022 (Jan. 26, 2023).

108

87 FR 46982 (Aug. 1, 2022).

109

88 FR 15434 (Mar. 13, 2023).

110

88 FR 60971 (Sept. 6, 2023).

111

88 FR 94 (Jan. 3, 2023).

112

88 FR 40282 (June 21, 2023).

113

88 FR 40304 (June 21, 2023).

114

88 FR 40294 (June 21, 2023).

115

88 FR 40317 (June 21, 2023).

116

87 FR 55024 (Sept. 8, 2022).

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

117

and Syria.

118

117

88 FR 69945 (Oct. 10, 2023).

118

89 FR 5562 (Jan 29, 2024).

The increased number of TPS-based EAD filings (particularly in renewal EAD applications in the A12 category) from FY 2022 to FY 2023 further stretched limited USCIS resources and contributed to the longer processing times for renewal EAD applications overall. Specifically, this increase helps explain why the 80th percentile processing time for automatic extension-eligible renewal applicants was 14.5 months by February 2024,

119

and increased the number of persons who are projected to experience a lapse in their employment authorization and/or EAD validity starting May 2024, as further detailed below.

119

For more information on how USCIS calculates its processing times, see USCIS' web page at

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

(last visited Nov. 14, 2023).

4. Increased Workforce Resources Unlikely To Keep Pace

Despite USCIS' best efforts to sufficiently anticipate and allocate staff to process EAD applications, USCIS has been unable to keep pace due to unexpected increases in receipts. The agency increased its adjudicative resources in concert with the increased receipts, devoting approximately 54 percent more adjudicative hours to EADs in FY 2023 than in FY 2022, resulting in 46 percent more EAD completions than in FY 2022.

120

USCIS projects that EAD application filings will continue to increase into FY 2024. The rapid increase in anticipated EAD application filings in FY 2024,

121

combined with the mandated 30-day processing time for initial C08 EAD applications, means that USCIS expects a shortfall in adjudications compared to receipts. This shortfall will prevent USCIS from adjudicating renewal EAD applications in time to avoid approximately 800,000 applicants from experiencing a temporary lapse in employment authorization and/or employment authorization documentation during the 2-year period beginning May 2024 absent the implementation of this temporary final rule.

120

The 54 percent increase in officer hours did not result in a 54 percent increase in completions because there are different hours per completion rates for different EAD categories. There was a significant increase in C08 initial adjudications in FY 2023. In FY 2023, the average C08 initial EAD application took 0.44 hours, whereas EADs overall took 0.23 hours. Therefore, the difference in complexity of different types of EAD adjudications is the primary reason for the deviation in the increase of total hours and total completions.

121

The Volume Projection Committee (VPC) forecasts USCIS workload volume using subject matter expertise from various directorates and program offices, including the Service Centers, National Benefits Center, RAIO, and regional, district, and field offices. Input from these offices helps refine the volume projections. VPC forecasts that there will be 4.6 million EAD application filings for FY 2024, compared to the approximately 3.49 million EAD applications filed in FY 2023.

From FY 2021 to FY 2023, adjudicative staff time

122

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

123

122

Adjudicative staff time means actual time, in hours, that USCIS spends adjudicating a benefit request. This includes straight time and overtime.

123

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

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

124

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

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

despite its robust hiring efforts.

125

This doubling of adjudicative time expended on a single form type over 2 years is highly unusual

126

and cannot be sustained without increasing resources and staffing rapidly.

125

See other parts of this preamble explaining operational challenges encountered through litigation and other events, such as the need for increased staffing at the southwest border.

126

For example, over the same time period, adjudicative time spent on other large USCIS workloads held relatively steady. As a percentage of adjudication time for all filings, time spent on Form N-400, Application for Naturalization was 22 percent in FY 2021, 22 percent in FY 2022, and 20 percent in FY 2023. Time on Form I-129, Petition for Nonimmigrant Worker seeking H-1B classification was 8 percent of all total filings in FY 2021, 8 percent in FY 2022, and 9 percent in FY 2023.

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

127

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

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

128

See

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

B. Other Measures Taken To Reduce EAD Application Processing Times

USCIS has also taken other significant operational steps to streamline EAD adjudications and reduce EAD processing times. Backlogs in general are a significant concern for the applicants who are applying for benefits with USCIS.

129

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

129

For example, the Citizenship and Immigration Services Ombudsman 2023 Annual Report to Congress stated that the backlogs at USCIS have resulted in an “ongoing exponential increase . . . in requests for case assistance.” The Report further states “USCIS began the year fully cognizant of its challenges in decreasing processing times and getting its backlogs under control and took significant steps to accomplish those goals. But 2022 brought with it significant new tasks for the agency that would create their own processing and operational challenges—challenges that the agency continues to grapple with in 2023 and which will impact future workloads.”

See

CIS Ombudsman, DHS, “Citizenship and Immigration Services Ombudsman Annual Report 2023 ” (June 30, 2023) at v, viii,

https://www.dhs.gov/sites/default/files/2023-07/2023%20Annual%20Report%20to%20Congress_0.pdf.

1. Increased EAD Validity Periods for Certain Applicants

As discussed in section II. B., Legal Framework for Employment Authorization, while certain classes of noncitizens are authorized to engage in employment authorization incident to status or circumstance, other classes of noncitizens are authorized to engage in employment only if they apply for and are granted such authorization by USCIS.

130

Under governing regulations, USCIS has the discretion to assign the validity period for EADs.

131

130

See

8 CFR 274a.12(a)-(c).

131

See

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

Since 2021, USCIS has made multiple policy changes to increase the maximum validity period for EADs in a number of categories.

132

In February 2022, USCIS increased the validity period for initial and renewal EADs for asylees and refugees, noncitizens with withholding of deportation or removal, and VAWA self-petitioners from maximum 1 year to maximum 2 years.

133

132

See, e.g.,

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

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

(updating the validity period for initial and renewal EADs issued to applicants for adjustment of status under INA 245 from 1 year to 2 years).

133

See

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

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

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

134

See

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

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

On September 27, 2023, USCIS updated its policy to increase the validity period to a maximum of 5 years for initial and renewal EADs for certain noncitizens who must apply for employment authorization, including applicants for asylum or withholding of removal, adjustment of status under section 245 of the INA, 8 U.S.C. 1255, and suspension of deportation or cancellation of removal.

135

USCIS expects this EAD policy to cause EAD filings in the applicable categories to significantly decrease starting in late FY 2025 and remain low until the third quarter of FY 2028, as there should be relatively few EADs with an expiration date between September 25, 2025, and September 26, 2028. Although USCIS predicts that the main effects of this policy change will not occur until after October 2025, USCIS projects that the increased validity periods will lead to a greater than 95 percent reduction in renewal EAD filing volumes from FY 2026 to late FY 2028 for categories covered by this policy.

135

See

USCIS, DHS, Policy Alert (PA-2023-27), “Employment Authorization Document Validity Period for Certain Categories” (Sept. 27, 2023),

https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20230927-EmploymentAuthorizationValidity.pdf.

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

136

This guidance

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

137

136

See

USCIS, DHS, Policy Alert (PA-2023-27), “Employment Authorization Document Validity Period for Certain Categories” (Sept. 27, 2023),

https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20230927-EmploymentAuthorizationValidity.pdf.

137

See

USCIS, DHS, Policy Alert (PA-2023-27), “Employment Authorization Document Validity Period for Certain Categories” (Sept. 27, 2023),

https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20230927-EmploymentAuthorizationValidity.pdf.

With the ongoing efforts to improves processing, which USCIS anticipates will lead to eventual reductions in filing volumes, USCIS will be better able to keep up with the EAD application workflow, avoid lapses in employment authorization and documentation, focus on reducing the overall backlog at USCIS, and enable officers to focus on other workloads.

2. Lifted the Hiring Freeze and Increased the Number of Full Time Equivalent Employees

USCIS is a fee-based agency that relies on predictable fee revenue and its carryover from the previous year. Due in part to the significant drop in revenue from the impact of the COVID-19 pandemic on benefit request filings and USCIS' inability to update its fee structure since the 2016 Fee Rule, as explained below, USCIS employed every available means to preserve sufficient funds to meet payroll and carryover obligations. These measures included drastic cuts as well as an agency-wide hiring freeze beginning on May 1, 2020.

138

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

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

139

The entire process from entering on duty to a new hire reaching full proficiency may take several months.

139

See

USCIS, DHS, “Training,”

https://www.uscis.gov/about-us/careers/training

(last updated Jan. 2, 2020).

Hiring new personnel continued to be a USCIS priority in 2023 in order to help reduce backlogs and meet operational requirements. When DHS issued the 2022 TFR on May 4, 2022, USCIS had approximately 18,500 employees. USCIS ended 2022 with 19,983 staff, and staffing levels grew to 20,631 by June 30, 2023.

As discussed previously, from FY 2021 to FY 2023, USCIS increased the number of FTEs adjudicating EAD applications from 336 FTEs to 630 FTEs, an 87.5-percent increase.

140

However, a large portion of the FTE increase for EADs was dedicated to initial C08 EAD applications due to the 30-day processing requirement. As a result, USCIS was unable to divert resources to other categories, such as renewal EAD applications in the auto-extension categories. From FY 2021 to FY 2023, USCIS increased the number of FTEs adjudicating initial C08 EAD applications by approximately 480 percent.

141

140

An FTE is an approximation of the number of hours of labor that make up the equivalent of one full-time employee.

See

fn. 123 in section III.A.4 of this preamble.

141

As previously discussed, USCIS ISOs spent 68,000 hours on C08 initial EAD applications in FY 2021, 116,000 hours in FY 2022, and 361,000 hours in FY 2023.

In short, from FY 2021 to FY 2023, USCIS increased the number of FTEs dedicated to adjudicating EAD applications by 87.5 percent. However, this significant increase in personnel performing EAD adjudications has not been sufficient to address the surge in applications. USCIS expects a continued FTE shortfall in the short term that will prevent USCIS from adjudicating renewal EAD applications in time to prevent a temporary lapse in employment authorization for approximately 800,000 applicants during the 2-year period beginning May 2024.

3. Issuance of Final Fee Rule

USCIS is primarily funded by fees charged to applicants and petitioners for the adjudication of immigration and naturalization benefits requests and is authorized, by law, to recover the full cost

142

of all adjudications and naturalization services.

143

USCIS calculates and proposes fees to recover the full cost of operations associated with adjudicating immigration benefit requests as authorized by section 286(m) of the INA, 8 U.S.C. 1356(m). USCIS last adjusted its fee schedule in December 2016, including the fees for EAD applications, although the mandated biennial fee reviews indicate an urgent need to update USCIS filing fees.

144

However, DHS until recently has been unable to update the fee structure, as explained below, and the current 2016 fee structure, including the Form I-765 fee of $410 per adjudication, has been insufficient to recover the full cost of USCIS operations, thus leading to the fiscal troubles previously described.

145

142

Full costs of providing all adjudication and naturalization services, includes support costs such as physical overhead, information technology management and oversight, human resources, national security vetting and investigations, accounting and budgeting, and legal services.

See

88 FR 402, 417 (Jan. 4, 2023) (“2023 Fee Rule NPRM”).

143

See

INA sec. 286(m), 8 U.S.C. 1356(m) (authorizing DHS to charge fees for adjudication and naturalization services at a level to “ensure recovery of the full costs of providing all such services, including the costs of similar services provided without charge to asylum applicants or other immigrants”). This contrasts with congressional appropriated agencies, whose budgets are not directly impacted by fluctuations in fee revenue.

144

See

81 FR 73292 (Oct. 24, 2016) (“2016/2017 Fee Rule”). Under the Chief Financial Officers Act of 1990 (“CFO Act”), codified at 31 U.S.C. 901-03, and under the Office of Management and Budget (OMB) Circular A-25, USCIS must conduct biennial reviews of the non-statutory fees deposited into USCIS' fee account. The primary objective of a fee review is to determine whether immigration and naturalization benefit fees will generate sufficient revenue to fund the anticipated operating costs associated with administering the nation's legal immigration system and to propose the necessary adjustments.

145

See

88 FR 402, 405 (Jan. 4, 2023).

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

146

See

88 FR 402, 426 (Jan. 4, 2023).

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

147

See

88 FR 402, 426 (Jan. 4, 2023).

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

148

DHS

estimated an average annual USCIS deficit of $1,035.9 million.

149

The rule was scheduled to become effective on October 2, 2020.

150

However, USCIS was not able to implement the fees set out in the 2020 fee rule because it was enjoined by two Federal district courts.

151

148

See

85 FR 46788 (Aug. 3, 2020) (“2020 Fee Rule”). The final rule was issued after DHS has

published a proposed rule.

See

84 FR 62280 (Nov. 14, 2019).

149

See

85 FR 46788, 46794 (Aug. 3, 2020).

150

See

85 FR 46788 (Aug. 3, 2020).

151

Immigrant Legal Res. Ctr.

Wolf,

491 F. Supp. 3d 520 (N.D. Cal. 2020) (“

ILRC

”);

Nw. Immigrant Rights Project

USCIS,

496 F. Supp. 3d 31 (D.D.C. 2020) (“

NWIRP

”).

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

152

See

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

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

153

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

4. Prioritized Adjudication of Employment-Based I-485 Adjustment Applications

Another area in which USCIS is actively prioritizing its workload is employment-based adjustment of status applications, which has downstream effects on EAD application adjudications, particularly those based on a pending adjustment of status application (C09). Since employment-based adjustment of status applicants are eligible for employment authorization based on the pendency of the adjustment of status application, the number of such applications filed with USCIS and the duration of their pendency directly impact the number of initial and renewal EAD applications filed. At the start of FY 2021, there were approximately 126,000 employment-based adjustment of status applications pending with USCIS. Approximately 313,000 employment-based adjustment of status applications were received during FY 2021. USCIS typically processes approximately 120,000 employment-based adjustment of status applications each year,

154

which generally corresponds with the number of available employment-based immigrant visas minus the number of such visas issued by Department of State annually. However, in FY 2021, FY 2022, and FY 2023, additional employment-based visas became available because of unusually low visa usage in the family-sponsored preference categories due in part to consular closures during the COVID-19 pandemic.

155

In response, USCIS prioritized processing of employment-based adjustment of status applications to maximize usage of available visas. By the end of FY 2021, USCIS had processed and approved approximately 175,000 employment-based adjustment of status applications, an increase of approximately 50 percent above the typical baseline.

156

USCIS continued this prioritization in FY 2022, approving more than 220,000 employment-based adjustment of status applications, and in FY 2023, where preliminary estimates show that USCIS approved more than 145,000 such applications. However, at the start of FY 2024 approximately 180,000 employment-based adjustment of status applications remained unadjudicated, including approximately 122,000 impacted by priority date retrogressions that may leave them pending for many years and thereby eligible for C09 EADs during this extended period.

157

154

See

Office of Immigration Statistics, DHS, “2021 Yearbook of Immigration Statistics,” Table 7, “Persons Obtaining Lawful Permanent Resident Status by Type and Major Class of Admission: Fiscal Years 2012 2021,”

https://www.dhs.gov/sites/default/files/2023-03/2022_1114_plcy_yearbook_immigration_statistics_fy2021_v2_1.pdf

(last visited Nov. 14, 2023).

155

Family-sponsored visas that remain unused at the end of the fiscal year are made available in the subsequent fiscal year to employment-based categories.

See

INA sec. 201(d); 8 U.S.C. 1151(d);

see also

USCIS, DHS, Archive, “Fiscal Year 2022 Employment-Based Adjustment of Status FAQs” (last reviewed/updated Aug. 26, 2022),

https://www.uscis.gov/archive/fiscal-year-2022-employment-based-adjustment-of-status-faqs.

156

See

USCIS, DHS, News Release, “USCIS Announces FY 2021 Accomplishments” (Dec. 16, 2021),

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

(last viewed Nov. 27, 2023).

157

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 accessed Dec. 7, 2023). In the interest of reducing the burden on both the agency and the public, USCIS has implemented multiple increases of the maximum validity period for initial and renewal EADs issued to applicants for adjustment of status under sec. 245 of the INA, 8 U.S.C. 1255, as described in section III.B.1 of this preamble. USCIS' return to its processing goal of 3 months for EAD renewal applications is critically important for applicants facing visa retrogression, as they may require multiple renewals.

To the extent possible, USCIS is committed to prioritizing adjudicating employment-based adjustment of status applications to utilize the available visa numbers each fiscal year.

158

In turn, many applicants are relieved from filing renewal EAD applications, because approval of the adjustment of status application grants the noncitizen lawful permanent resident status such that they are employment authorized incident to status, and leads to issuance of a Permanent Resident Card, an acceptable Form I-9 document.

159

Therefore, the more adjustment of status applications USCIS is able to process and approve, the fewer C09 renewal EAD applications USCIS will receive, thereby reducing the number of EAD renewal filings overall. In the interim, urgent action is needed to address the growing number of renewal EAD applicants who may soon experience a gap in their employment authorization and/or EAD because of USCIS' predicted but unprecedented renewal EAD processing times.

158

While the INA provides that unused employment-based visas allocated to a given fiscal year are made available in the subsequent fiscal year to family-sponsored preference categories, those visas are effectively lost due to other provisions that have the effect, after accounting for the number of immigrant visas used by immediate relatives of U.S. Citizens (among others), of setting the number of family-sponsored preference visas in a fiscal year at 226,000.

See

INA sec. 201(c) and (d); 8 U.S.C. 1151(c) and (d). To avoid the loss of unused employment-based immigrant visas, USCIS prioritizes employment-based adjustment of status applications over most other applications, including EAD renewal applications.

159

See

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

5. Issued Guidance Stating That Spouses of E and L Nonimmigrants Are Employment Authorized Incident to Status

In March 2022, USCIS issued policy guidance stating that spouses of

160

and L

161

nonimmigrants were authorized to work incident to status and did not need to obtain an EAD in order to seek employment.

162

This new policy resulted in reduced initial and renewal EAD applications by these noncitizen spouses. During the 12 months preceding this policy update, between March 1, 2021, and February 28, 2022, USCIS received an average of 700 A17 (spouse of E nonimmigrant) and 1,500 A18 (spouse of L nonimmigrant) EAD applications per month. Between March 1, 2022, and September 30, 2023, after the policy began to take effect, USCIS received an average of 220 A17 and 350 A18 EAD applications per month. In FY 2023, USCIS received an average of 160 A17 and 90 A18 EAD applications per month. Therefore, this policy resulted in a reduction of about 2,000 initial and renewal EAD applications per month.

160

See

INA sec. 101(a)(15)(E), 8 U.S.C. 1101(a)(15)(E) (providing that a noncitizen entitled to enter the United States under and in pursuance of the provisions of a treaty of commerce and navigation between the United States and the foreign state of which the noncitizen is a national, (or, in the case of a noncitizen who acquired the relevant nationality through a financial investment and who has not previously been granted status under this subparagraph, the foreign state of which the noncitizen is a national and in which the noncitizen has been domiciled for a continuous period of not less than 3 years at any point before applying for a nonimmigrant visa under this

subparagraph), and the spouse and children of any such noncitizen if accompanying or following to join such alien.).

161

See

INA sec. 101(a)(15)(L); 8 U.S.C. 1101(a)(15)(L) (providing that a noncitizen who, within 3 years preceding the time of his application for admission into the United States, has been employed continuously for one year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and who seeks to enter the United States temporarily in order to continue to render his services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive, or involves specialized knowledge, and the noncitizen spouse and minor children of any such noncitizen if accompanying him or following to join him”).

162

See

USCIS, DHS, Policy Alert (PA-2022-11), “Documentation of Employment Authorization for Certain E and L Nonimmigrant Dependent Spouses” (Mar. 18, 2022)

https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20220318-EmploymentAuthorization.pdf.

6. Permitted Certain Asylum Applicants To Electronically File EAD Applications

In January 2023, USCIS announced that certain asylum applicants were now eligible to electronically file applications for EADs in the C08 category.

163

This allowed applicants to submit their applications, check the status of their case, and receive notices from USCIS online, thus reducing the operational costs associated with paper applications such as scanning, manual data entry, and shredding. These cost savings have allowed resources to be used elsewhere, including funding new positions and overtime. Offering the option to file EAD applications online has made the process more efficient, secure, and convenient for EAD applicants and increased operational efficiencies for USCIS.

163

See

USCIS, DHS, “Asylum Applicants Can Now File Form I-765 Online,”

https://www.uscis.gov/newsroom/alerts/asylum-applicants-can-now-file-form-i-765-online

(last accessed Dec. 7, 2023).

7. Alternative Backlog Reduction Method Considered But Not Implemented: Changing the Adjudication of EAD Renewal Applications To Prioritize Adjudication by the Expiration Date of an Applicant's 180-Day Automatic Extension

In addition to the backlog reduction efforts described in section III.B of this preamble, USCIS explored the possibility of changing the order of renewal EAD adjudications from a general First in First Out (FIFO) processing order

164

to a processing order that would prioritize adjudication based on the expiration date of the applicant's 180-day automatic extension period. After careful consideration, USCIS has determined that this option was not operationally feasible. The primary reasons are the manual effort required to identify and assign cases to officers based on when an individual's previous employment authorization expires, the volume of impacted cases, and the inability to surge additional resources to implement such a change.

164

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

Regarding the manual effort required to identify when the EAD associated with a renewal case expires, there is currently no system-based way to assign work based on expiring employment authorization. This means that, although cases can be tracked online using existing systems, the act of delivering those cases based on expiration dates to an officer requires that they be manually assigned. Additionally, as the categories of renewal applications are filed and adjudicated in a mix of paper and electronic formats, records staff must physically locate each individual paper file. EAD applications that are paper files are generally organized and assigned by receipt date on file room shelves, so any attempt to manually identify when the EAD associated with a renewal case expires would require physically tabbing through all files received on the same given day and for the same filing category. Multiplying that effort by the hundreds of thousands of pending renewal EAD applications would cause significant inefficiencies for both adjudications and records staff, diverting resources further away from other tasks, in turn creating new backlogs. As of November 2023, approximately 467,000 thousand EAD applications pending with SCOPS (44 percent) remained in paper files.

Even with respect to electronically filed renewal EAD applications, it is currently not possible to assign cases electronically by expiration date. USCIS would have to do so manually, using spreadsheets to log and identify all pending EAD renewal applications and then document and sort each case by date of EAD expiration. USCIS would then need to identify each application in the system and then manually route each EAD application to be assigned for pre-processing and adjudication.

165

The task of manually assigning work for both pre-processing and adjudication would take additional time and interfere with USCIS' overall productivity until the system can be modified to accommodate a new process for prioritizing and assigning work. As discussed below, it would take at least one year to modify the system to re-prioritize this workload.

165

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

In addition, the information technology resources required to modify the system in this manner and the time it takes to develop, test, and implement an automated assignment process make it infeasible to reprioritize the workload in the system in time to prevent the renewal EAD expirations beginning in May 2024. To implement this process in USCIS' Electronic Immigration System online system, it would take the USCIS Office of Information Technology approximately 6 to 9 months of development work and an additional 3 months for beta testing and deployment. In addition, changes would need to be made to the process by which cases are selected for adjudication in the case management system used by USCIS to process immigration benefit requests.

Finally, prioritizing renewal EAD applications based on the expiration of the 180-day automatic extension periods versus a general FIFO processing order would lead to the inequitable result that applicants who filed their renewal EAD applications right before the expiration of their EADs could be prioritized over applicants who filed their renewal EAD applications according to USCIS' recommended filing period in advance of their EAD expiration date. Such prioritization could incentivize more applicants to file their renewal EAD applications close to the expiration of their EADs, as their applications would effectively be expedited over other applications filed up to 6 months in advance of expiration. Should that occur, USCIS and the public would

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

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

1. EAD Application Processing Backlogs

USCIS relies on a combination of internal processes and plans to work to reduce backlogs.

166

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

166

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

As of February 2024, USCIS had approximately 439,000 pending renewal EAD requests in the categories eligible for automatic extension,

167

and received an average of approximately 52,800 additional automatic extension-eligible renewal EAD applications per month in FY 2023.

168

These additional renewal applications are adding to the current backlog, given that USCIS currently completes approximately 49,100 automatic extension-eligible renewal EAD applications per month.

169

167

The vast majority of applicants filing renewal EAD applications and who are eligible for the automatic extension of EADs under 8 CFR 274a.13(d) fall into three filing categories: (1) noncitizens who have properly filed applications for asylum and withholding of deportation or removal (C08); (2) noncitizens who have filed applications for adjustment of status to lawful permanent resident under section 245 of the INA, 8 U.S.C. 1255 (C09); and (3) noncitizens who have filed applications for suspension of deportation under section 244 of the INA (as it existed prior to April 1, 1997), cancellation of removal pursuant to section 240A of the INA, 8 U.S.C. 1229b, or special rule cancellation of removal under section 309(f)(1) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (C10). In FY 2023, these three filing categories made up nearly 61 percent of the renewal EAD receipts filed in categories eligible for the automatic extension of employment authorization. Broken down further among these three categories: the C08 category comprised approximately 41 percent of the renewal EAD receipts filed in categories eligible for the automatic extension, while the C09 category comprised approximately 10 percent and the C10 comprised approximately 10 percent.

168

In FY 2023, USCIS received a total of approximately 633,000 renewal EAD applications in the categories eligible for automatic extension, which averages to approximately 52,800 filings per month.

169

Based on current processing times, many of the 534,000 currently pending renewal EADs will remain pending through the end of FY 2024. These applications generally do not add to the number of renewal applicants who will lose employment authorization in May 2024 because most of the pending renewal applications were filed under the 2022 TFR and still benefit from the 540-day automatic extension period.

In FY 2023, the 80th percentile processing time for all renewal EAD applications was 14.2 months. For those automatic extension-eligible renewal applicants, as of February 2024, the 80th percentile processing time was 14.5 months.

170

Given these processing times and USCIS' EAD adjudication rates, DHS projects that, between May 2024 to March 2026, approximately 800,000 renewal applicants eligible for an automatic extension will exceed the 180-day automatic extension period unless this Temporary Final Rule is issued.

170

For more information on how USCIS calculates its processing times, see USCIS' web page at

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

(last visited Nov. 14, 2023).

2. Impact of Long Processing Times for Renewal EAD Applications

For the reasons discussed in section III.A of this preamble, the dramatic increase in EAD applications and associated operational challenges were caused by a number of external developments that constrained USCIS' ability to dedicate sufficient resources to processing renewal EAD applications. As a result, the 180 days of additional employment authorization and/or EAD validity under 8 CFR 274a.13(d) are insufficient. After the additional 180 days are exhausted, many applicants will still be waiting for their renewal EAD applications to be approved. These applicants will experience a lapse in their employment authorization and/or EAD validity while their renewal applications remain pending.

Without immediate intervention, DHS estimates that the situation will dramatically worsen over time, as each month thousands of additional renewal EAD applicants will be at risk of losing their employment authorization and/or EAD validity despite the 180-day automatic extension period currently provided by regulation.

USCIS projects that approximately 800,000 individuals could lose employment authorization between May 2024 and March 2026 in the absence of this TFR.

171

In May 2024, 3,000 renewal applicants, the majority

172

of whom are in the C08 pending asylum applicant category, are projected to experience a gap in their employment authorization and/or EAD validity. The number of applicants who could lose employment authorization and/or EAD validity each month will rapidly increase to 12,000 during July, and peaking at more than 60,000 during November 2025, unless immediate action is taken to remedy the situation.

171

See

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

172

See

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

The situation for asylum applicants is especially dire because of the significant time that asylum applicants must wait to become employment-authorized in the first place. By statute, asylum applicants cannot be approved for initial EADs until their asylum applications have been pending for 180 days.

173

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

173

See

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

Continuation of employment authorization and/or EADs is also a requirement for their employers who must comply with Form I-9 reverification requirements in order to continue to employ these employees.

174

In addition, some employers, notwithstanding possible violation of section 274B of the INA, 8 U.S.C. 1324b

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

174

See

8 CFR 274a.2(b)(1)(vii).

Continuous employment authorization and documentation during the pendency of an asylum application is vital for asylum seekers in the United States to access housing, food, and other necessities. In addition, asylum seekers may need income from employment to access medical care, mental health services, and other resources, as well as to access legal counsel in order to pursue their claims before USCIS or EOIR. Access to mental health services is particularly crucial for asylum seekers due to the prevalence of trauma-induced mental health concerns, including depression and post-traumatic stress disorder. The physical harm experienced by many asylum seekers frequently necessitates continuous medical care for extended periods of time. Finally, the purpose for which asylum seekers came to the United States is to seek long-term protection by receiving asylum.

In addition, having unexpired employment authorization and EADs is necessary for certain noncitizens such as asylum applicants and TPS beneficiaries when they apply for benefits that require proof of identity or immigration status. The only acceptable document available to some noncitizens such as asylum applicants and TPS beneficiaries to establish identity for other purposes, such as obtaining a REAL ID-compliant driver's license or identification card, may be an unexpired EAD.

175

REAL ID-compliant driver's licenses as well as identification cards are used for other official purposes including access to Federal facilities and boarding federally regulated commercial aircraft.

176

Without an unexpired EAD, certain classes of noncitizens would not be able to apply for REAL ID-compliant driver's licenses and IDs.

175

6 CFR 37.11(c).

176

REAL ID Act of 2005, Public Law 109-13, div. B, Title II, Sec. 201(3) (May 11, 2005).

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

e.g.,

inadvertently engage in unauthorized employment during the gap,

177

and on their U.S. employers who must examine unexpired documents that evidence their employees' employment eligibility and attest that their employees are authorized to work in the United States.

178

DHS also acknowledges that the substantial increase in backlogs and prolonged processing times for renewal EAD applications are not the fault of applicants, but nonetheless will have significant adverse consequences for applicants, their families, and their employers in the absence of this TFR.

177

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

See

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

178

See, e.g.,

INA sec. 274A(b)(1), 8 U.S.C. 1324a(b)(1), 8 CFR 274a.2(a)(3).

3. The Current Automatic Extension Period of 180 Days Must Be Temporarily Increased to 540 Days

DHS has determined that the automatic extension period of up to 180 days at 8 CFR 274a.13(d) is currently insufficient to meet the original purpose for which it was implemented: to prevent the occurrence of gaps in employment authorization and documentation for eligible applicants.

179

Although USCIS has significantly increased staffing as well as case completions, these gains have been outstripped by the increased volume of receipts and other operational issues. As a result, USCIS is unable to significantly increase its rate of completion in the immediate term and, therefore, is currently unable to meaningfully reduce the volume of pending cases while also keeping pace with the inflow of renewal EAD filings. While USCIS will continue to explore and implement ways to improve adjudicative efficiencies in the short and long term, USCIS expects that its substantial renewal EAD backlogs will continue in the immediate future. This temporary circumstance has created an urgent situation for noncitizens and U.S. employers as gaps in employment authorization and documentation have a highly detrimental impact on noncitizen workers and their U.S. employers.

179

See

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

a. Reduce Backlogs

As stated above, USCIS received an average of approximately 52,800 automatic extension-eligible EAD applications per month in FY 2023, and completes approximately 49,100 such requests per month, leading to the growing backlog.

180

The 80th percentile processing time for the automatic extension categories combined as of February 2024 was 14.5 months. Based on current incoming volumes and completions, USCIS projects that this backlog will hold steady, if not slightly increase, in the next 6 months. USCIS began to hire following the end of the hiring freeze associated with the fiscal impacts of COVID-19 and the potential furlough, both of which contributed to higher-than-average attrition. The hiring and training processes are lengthy, but USCIS is continuing to grow and see the increases in completions associated with improved staffing. Additionally, the agency continues to refine and expand the use of systems to improve processing efficiency.

180

See

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

Based on the growth of receipts for renewal EAD applications in the past year

181

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

181

See

section III.A, Table 1C. of this preamble for more details.

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

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See

USCIS, DHS, “Reducing Processing Backlogs,”

https://egov.uscis.gov/processing-times/reducing-processing-backlogs

(last visited Jan. 19, 2024).

To determine how long DHS should provide this temporary increased automatic extension period, DHS assessed the pending and incoming volume of renewal EAD filings against current USCIS resources. As of February 2024, USCIS had approximately 439,000 pending renewal EAD requests in automatic extension-eligible categories, and this is projected to increase for the near future. To achieve USCIS' processing goal of 3 months for EAD renewal applications,

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USCIS must keep pace with the incoming volume (in other words, complete approximately 57,500 renewal EAD requests in automatic extension-eligible categories per month projected in the 18 month period beginning in May 2024) in addition to reducing the pending volume of renewal requests from 439,000 to 172,500.

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USCIS anticipates that the decrease in filings for applicants who received an EAD with 5-year validity will provide an opportunity to address existing backlogs and improve processing times. USCIS currently completes approximately 49,100 automatic-extension eligible renewal EAD adjudications per month, averaging 0.23 hours per completion. To reduce the expiration counts to near zero by the end of the TFR period, USCIS would need to increase completions by approximately 4,900 per month, which is about a 10% increase. This means that USCIS would need to devote approximately 162,000 officer hours a year at 15 minutes per case, or achieve an equivalent increase in completions through policy changes, processing enhancements, or other means, in order to keep pace with the incoming flow of new renewal requests and minimize the number of renewal applicants who may lose their employment authorization and/or documentation prior to the approval of their EAD applications. As described in section III.C.3.b of this preamble, USCIS will continue pursuing other means to increase completions and reduce expirations while this TFR is in effect.

183

See

USCIS, DHS, “Reducing Processing Backlogs,”

https://egov.uscis.gov/processing-times/reducing-processing-backlogs

(last visited Jan. 19, 2024).

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USCIS estimates that 172,500 pending requests translates roughly to a 3-month processing time, depending on monthly EAD renewal application receipts and the number of officer hours devoted to processing renewal receipts.

Therefore, DHS has concluded that it will authorize a temporary 360-day increase to the automatic 180-day extension period, for a total of 540 days, to individuals who file a renewal EAD application during the 540-day period following publication of this rule. DHS will also grant the additional 360-day increase to the automatic extension period to those with pending renewal applications that were filed after the expiration of TFR 2022, that is, on or after October 27, 2023. Applicants who file an EAD renewal application after this filing timeframe and who are eligible for an automatic extension of their employment authorization and/or EADs will receive the 180-day automatic extension period currently provided at 8 CFR 274a.13(d)(1).

This TFR applies to two groups of applicants. First, the rule applies to those renewal applicants eligible for the automatic extension who have filed their renewal EAD applications on or after October 27, 2023,

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which remain pending as of the date this rule goes into effect, [INSERT DATE OF PUBLICATION IN THE

FEDERAL REGISTER

], and whose EAD has not expired or whose current up to 180-day auto-extension has not yet lapsed, since this group is at imminent or near-term risk of experiencing a gap in employment authorization and/or documentation.

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Second, the rule applies to new renewal applicants who file their EAD applications during the 18-month period following the rule's effective date to avoid a future gap in employment authorization and/or documentation.

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However, in recognition of Congress' clear intent in the INA to prohibit and provide penalties for unauthorized employment, including the accountability of employers that employ noncitizens who are not authorized to work in the United States,

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this TFR does not address periods of unauthorized employment. In other words, this rule does not cure any unauthorized employment that may have accrued prior to issuance of the rule.

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Individuals who have filed their renewal EAD application on or before October 26, 2023.

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An individual who filed a renewal EAD application on or after October 27, 2023, but whose application was denied prior to the publication date of this rule, no longer has a pending application and therefore will not receive the additional automatic extension.

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Providing a set amount of additional automatic extension time for a set period is the least administratively burdensome approach, allowing the agency to focus its limited resources on addressing the lengthy processing times themselves. Additionally, DHS anticipates that this approach is the least burdensome for the public, including employees and employers, since the temporary solution is clear, can be relied upon, can be planned for, and otherwise operates in the same way as the existing automatic extension described in 8 CFR 274a.13(d)(1) and the 2022 TFR.

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See generally

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

In addition, DHS has determined that the temporary amendment made by this rule should remain in the Code of Federal Regulations (CFR) for an amount of time sufficient to cover the approximately 18-month period during which the up to 540-day automatic extension will be authorized, plus an additional 720 days, so that the regulatory provision remains in the CFR for the entire time that applicants may be relying on this temporary increase to the regular automatic extension period.

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As such, this TFR will take effect on April 8, 2024, and will be removed from the CFR on September 20, 2027, that is, approximately 3 years and 6 months (or 1,260 days) after the rule takes effect, although no new beneficiaries will receive a 540-day automatic extension after September 30, 2025. Further, as is consistent with current guidance, applicants should file a renewal EAD application no earlier than 180 days prior to the expiration date of their EAD.

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

b. Improve Future Processing Times and Reduce Filing Volume

DHS also considered other factors that may further help to reduce the renewal EAD application processing times, including the potential for additional officers based on a potential increase in filing fee revenue while this TFR is in effect, as well as processing efficiencies through streamlining certain steps in the processing of renewal EAD applications and the policy changes described above. Based on the available data on the pending and incoming volume of renewal EAD filings, and taking into consideration future variables, such as increased adjudicative staff and filing fees, USCIS expects to improve its processing times over the coming years.

Additionally, the automatic extensions provided in this TFR will extend through the period in which USCIS expects to see a decrease in filings due to the policy change to provide 5-year validity to certain categories of EADs. This window of decreased receipts should provide USCIS the opportunity to significantly decrease backlogs. Based on the conditions in place at the beginning of FY 2024, USCIS projects that the implementation of the 5-year-maximum EAD policy will result in a significant drop in EAD renewal applicants as of September 27, 2025. The largest volume of EAD categories are C08s, C09s, and

C10s, which have generally been issued 5-year EADs starting on September 27, 2023.

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

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

In addition, the 540-day filing period will ensure that eligible EAD renewal applicants who timely file a renewal application will have a near term solution and will not experience a lapse in employment authorization and/or documentation starting in May 2024, while USCIS continues to pursue a long-term solution by soliciting public input and fully assessing the effects of policy and operational changes described in this preamble.

4. EAD Renewal Applicants at Risk of Experiencing a Gap in Employment Authorization or EAD Validity Under This TFR

The data projection in the Regulatory Impact Analysis (“RIA”) indicates that even with the 540-day automatic extension provided in this TFR, approximately 260,000 EAD renewal applicants are potentially at risk of experiencing a gap in employment authorization or proof of employment authorization.

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That is, at the baseline and assuming that no operational or other policy changes are implemented, of the projected 689,000 (lower bound estimate) to 824,000 (upper bound estimates)

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of renewal applicants who receive a temporary up to 540-day automatic extension period, about 260,000 renewal EAD applicants could still lapse between November 2025 and April 2027.

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However, this projection is based on data from the beginning of FY 2024 and the conditions in place at that specific time. Because of several variables, these data projections cannot fully take into account the complete effect of operational and policy changes described above, combined with any future changes and operational shifts (such as hiring additional officers or additional technological changes and operational shifts that improve processing efficiency) that USCIS plans to undertake to reduce EAD processing times.

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This TFR will provide USCIS with more time to evaluate the effects of the operational changes already implemented

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and consider and implement additional operational, policy, and technological changes that may further improve the overall efficiency of USCIS adjudications. Based on current projections, this TFR also will ensure that, during the 540 days following publication of this TFR, none of the affected applicants are expected to experience a gap in employment authorization and/or EAD validity because of USCIS processing delays. This TFR will therefore address the associated harmful effects that gaps in employment authorization and/or documentation will have for applicants, their families, their employers, and the economy during that time.

191

See

V.B.2. Table 6 detailing how variation in the inputs used to the model a baseline affect the range of results of the rule's estimated impacts in the RIA.

192

See

V.B.2. Table 6 and Table 7.

193

DHS predicts that, based on the high level of C08 filings who received a 2-year validity EAD prior to the policy change implementing a 5-year policy, USCIS will experience a spike in renewal EAD processing times starting around August 2024 and lasting through October 2025 because of a large amount of C08 renewal filings. As a result of this spike in processing times, USCIS projects that approximately 260,000 renewal EAD applicants could lapse between November 2025 and April 2027 if there is no change to current conditions.

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Although these data projections cannot fully take into account the complete effect of possible operational and policy changes, USCIS does include a sensitivity analysis that considers a change in officer output by +/−10 percent and +/−15 percent. All other variables remain constant. See Tables 6A and 6B.

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For example, as explained in section III.B.1. of this preamble, USCIS expects that the new 5-year EAD practice implemented in September 2023 will cause certain EAD renewal filings in the applicable categories to significantly decrease starting in October 2025 and to remain low until the third quarter of FY 2028. There should be very few EADs in the categories covered by the 5-year EAD policy with a validity expiration date between September 25, 2025, and September 26, 2028. Although the main effects of the 5-year EAD policy change will not occur until October 2025, USCIS projects that the increased validity periods will lead to a 60 percent reduction in volumes, on average, and possibly greater for categories who historically file only one EAD renewal to maintain employment authorization during the pendency of their primary immigration benefit. After October 2025, USCIS, as well as applicants filing for renewal of their EADs, will benefit from the long-term effects of this policy change as the reduced filing volumes should allow USCIS to reduce EAD renewal processing times.

As part of the development of this rule, DHS considered whether the temporary automatic extension period in the new 8 CFR 274a.13(d)(6) should be increased to at least up to 730 days (rather than up to 540 days). Based on the baseline data projections, DHS believes that increasing the automatic extension period to at least up to 730 days could ensure that a large part of the approximately 260,000 renewal EAD applicants who are currently predicted to experience a gap in employment authorization and/or documentation under the 540-day automatic extension period would not experience any gaps.

However, although DHS understands that granting an automatic extension of 540-days might not fully resolve the problem, DHS has determined to focus on near-term needs of applicants, their families, and employers by ensuring that, through this TFR, none of them will imminently or in the near-term experience the harmful effects that gaps in employment authorization and/or documentation could create. At the same time, the rule provides DHS with an additional window during which it can consider long-term solutions by soliciting public comments, evaluating the effects of ongoing policy and operational changes described in this preamble, and continuing to identify new strategies and efficiencies in the future.

Creating a near-term solution with a 540-day extension period is furthermore appropriate because longer extension periods would create additional complexities for employers. For example, TPS designations and associated EAD benefits cannot be granted for longer than 18 months (which is approximately 540 days).

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If USCIS were to extend the automatic EAD extension period beyond 540 days, it would have to create a separate provision for TPS-based EAD applicants. Having up to 730 days of an automatic extension period for one group of EAD renewal applicants and 540 days for others increases the risk of confusion as employers would be required to understand and adhere to additional different extension periods depending on eligibility category on the EAD the worker possessed and when the EAD renewal application was filed. For example, an employer may have multiple employees who are employment authorized under the C08 category but, depending on when their EAD renewal application was filed, those employees may have different amounts of time for which their employment authorization and EAD are automatically extended. Even though they all have employment authorization under C08, those employees who filed an EAD renewal application before October 27, 2023, would have an automatic extension up to 540 days, whereas those who filed on or after October 27, 2023, would have an automatic extension up to 730 days. These variables increase the risk that an

employer may make a mistake when verifying employment authorization or determining when reverification needs to occur. Because employers may face civil money penalties if they do not properly maintain employment eligibility verification paperwork or employ a noncitizen without employment authorization,

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the risk of a mistake stemming from different automatic extension periods is not insignificant.

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See

INA secs. 244(a)(2), (b)(2), (d), 8 U.S.C. 1254a(a)(2), (b)(2), (d); 8 CFR 244.12.

197

See

INA sec. 274A(e)(5), 8 U.S.C. 1324a(e)(5).

In addition, DHS currently assesses that it is premature to grant an automatic extension for up to 730 days (or approximately 2 years), in part because the longer the period of time before an employer has to reverify a noncitizen employee whose employment authorization is automatically extended, the great

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