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

Federal RegisterDec 13, 2024

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 274a

[CIS No. 2785-24; DHS Docket No. USCIS-2024-0002]

RIN 1615-AC78

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

AGENCY:

U.S. Citizenship and Immigration Services (“USCIS”), Department of Homeland Security (“DHS”).

ACTION:

Final rule.

SUMMARY:

This final rule amends DHS regulations to permanently increase the automatic extension period for expiring employment authorization and/or Employment Authorization Documents (Forms I-766 or EADs) for certain renewal applicants who have timely filed Form I-765, Application for Employment Authorization, from up to 180 days to up to 540 days. After two temporary rules, DHS is finalizing the recent temporary rule and making the increase permanent to help prevent eligible renewal EAD applicants from experiencing a lapse in employment authorization and/or the validity of their EAD as a result of lengthy USCIS processing times.

DATES:

This final rule is effective January 13, 2025.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary

A. Purpose of the Regulatory Action

B. Summary of Legal Authority

C. Summary of Regulatory Changes

D. Severability

E. Summary of Costs and Benefits

II. Background

A. Legal Authority

B. Legal Framework for Employment Authorization and Verification

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

2. The Application Process for Obtaining Employment Authorization and EADs

3. Automatic Extensions of EADs for Renewal Applicants and Related Employment Eligibility Verification Requirements for Employers

i. Renewing Employment Authorization and/or EADs

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

C. 2022 Temporary Final Rule

1. Overview

2. Impact of the 2022 Temporary Final Rule

D. 2024 Temporary Final Rule

1. Overview

2. Impact of the 2024 Temporary Final Rule

III. Purpose and Discussion of the Final Rule

A. Circumstances Resulting in the 2022 Temporary Final Rule

1. USCIS Enjoined From Increasing Its Filing Fees

2. Public Health Emergency Caused by the COVID-19 Pandemic

3. Unprecedented Increase in EAD Application Filings

4. Combined Impact on Renewal EAD Application Processing Times

B. Circumstances Resulting in the 2024 Temporary Final Rule

1. Overview

2. Surge in Initial EAD Application Filings by Pending Asylum Applicants

3. Significant Increase in Referrals to USCIS for Credible Fear Assessments

4. Impact of Asylum Filing Surges and Backlogs on C08 Renewals

5. Additional Designations for Temporary Protected Status

6. Combined Impact on Renewal EAD Application Processing Times

C. Automatic Extension Period of up to 180 Days in Current 8 CFR 274a.13(d)(1) Is Insufficient

IV. Discussion of Public Comments

A. Summary of Comments on the 2024 TFR

B. General Support for the 2024 TFR

C. General Opposition to the 2024 TFR

D. Legal Authority

E. Purpose of the 2024 TFR

F. Positive Impacts of the 2024 TFR

G. Impacts on U.S. Employers and the Economy

1. Provide Stability and Decrease Burdens for U.S. Employers

2. Contributions to Local, State, and U.S. Economy

3. Alleviate Shortages in the U.S. Labor Market

H. Impacts on the U.S. Government

I. Allow a Second 540-Day Automatic Extension Period for Noncitizens Who Received the 2022 TFR Automatic Extension

J. Make Permanent and Extend the Temporary Automatic Extension Period Beyond 540 Days

1. Permanent Increase to the Automatic Extension Period

i. Increase Necessary To Address Processing Backlogs

ii. Benefit to USCIS

iii. Benefit to Workers

iv. Benefit to Employers

2. Increase the Automatic Extension Period to 730 Days

K. Expand EAD Categories Eligible for Automatic Extension

L. EAD Validity Period

M. Automatic Renewals

N. Application, Adjudication, and Notification Processes

1. General Comments on Adjudication and Application Times and Prioritization of Reviews

i. EAD Processing Resources and Priorities

ii. Decentralizing of EAD Processing and Other Processing Recommendations

iii. General Processing

iv. Notification to Applicants

v. Suggestions To Improve USCIS' Systems or Applicant-USCIS Communication

2. Transparency, Clarity, and Outreach to External Stakeholders

3. Alternative Actions

4. Regulatory Impact Analysis

V. Regulatory Changes: 8 CFR 274a.2(b)(1)(vii), 8 CFR 274a.13(d)(1), (d)(3) and 8 CFR 274a.13(d)(6); Authority Citation

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

B. Revising 8 CFR 274a.13(d)(1) and (d)(3), and Removing (d)(5) and (d)(6)

C. Revising Authority Citations for 8 CFR Part 274a

VI. Statutory and Regulatory Requirements

A. Executive Order 12866 (Regulatory Planning and Review) and Executive Order 13563 (Improving Regulation and Regulatory Review)

1. No Action Baseline—Effects of This Final Rule

2. Without TFR Baseline—Effects of the 2022 and 2024 TFRs

i. Introduction

ii. Background and Population

iii. Impact Analysis

a. Module A. Earnings of Renewal EAD Applicants

b. Module B. Impacts That Could Accrue to Labor Earnings

1. Earnings Impact to EAD holders

2. Labor Turnover Cost Impacts

c. Module C. Monetized Impacts for the 2022 and 2024 TFRs, FY 2023 Through FY 2027

d. Module D. Other Impacts

3. Alternatives Considered

B. Regulatory Flexibility Act

C. Unfunded Mandates Reform Act of 1995

D. Small Business Regulatory Enforcement Fairness Act of 1996 (Congressional Review Act)

E. Executive Order 13132 (Federalism)

F. Executive Order 12988 (Civil Justice Reform)

G. Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments)

H. National Environmental Policy Act

I. Family Assessment

J. Paperwork Reduction Act

VII. List of Subject and Regulatory Amendments

I. Executive Summary

A. Purpose of the Regulatory Action

This final rule amends 8 CFR 274a.13(d) and the related employment eligibility verification provision at 8 CFR 274a.2(b)(1)(vii) to permanently

increase the automatic extension period for employment authorization and the validity of certain EADs from up to 180 days to up to 540 days. This automatic extension period is available to certain applicants who timely filed a Form I-765, Application for Employment Authorization, to renew their EADs.

Since the promulgation of 8 CFR 274a.13(d) with its 180-day automatic extension period in 2016,

DHS has issued two temporary final rules (TFRs) temporarily increasing the automatic extension period to up to 540 days in order to prevent a substantial number of renewal EAD applicants from experiencing a lapse in their employment authorization and/or documentation.

With the 2024 TFR that is currently in effect, DHS focused on near-term needs of renewal applicants, their families, and employers by substantially reducing the number of applicants who would experience harmful effects created by gaps in their employment authorization and/or documentation.

The 2024 TFR also provided DHS and USCIS with additional time to consider long-term solutions by soliciting public comments, evaluating the effects of policy and operational changes, and continuing to identify new ways to reduce renewal EAD application processing times.

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).

See

87 FR 26614 (May 4, 2022) (2022 TFR); 89 FR 24628 (Apr. 8, 2024) (2024 TFR).

89 FR 24628, 24629 (Apr. 8, 2024).

See

89 FR 24628, 24629 (Apr. 8, 2024).

After careful consideration of the public comments submitted in connection with the 2024 TFR, as well as the operational realities associated with the events described in the 2024 TFR, DHS has determined that the up to 180-day automatic extension under 8 CFR 274a.13(d) does not provide USCIS enough time to address large spikes in EAD filings and other circumstances that may occur in the future and increase renewal EAD application processing times. DHS believes that a substantial number of renewal EAD applicants may, in the future, continue to face uncertainty about the risk of losing employment authorization and/or EAD validity through no fault of their own because of USCIS processing delays resulting from sporadic spikes in EAD filings or other unanticipated circumstances. The potential for gaps in employment authorization and EAD validity periods also creates uncertainty among U.S. employers.

In addition, lapses in employment authorization and EAD validity can result in substantial harm to noncitizens, their families, their employers, and the public at large. To help prevent the harmful effects of these gaps, DHS is amending its existing regulations to permanently increase the automatic extension period applicable to expiring employment authorization and/or EADs for certain renewal applicants from up to 180 days to up to 540 days from the expiration date stated on their EADs. This final rule will be effective January 13, 2025. USCIS will also continue its efforts to reduce processing times for renewal EAD applications.

B. Summary of Legal Authority

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

C. Summary of Regulatory Changes

Following careful consideration of the public comments received in response to the 2024 TFR, DHS is making the following changes to its employment authorization and verification regulations:

• Amending existing 8 CFR 274a.2(b)(1)(vii): DHS is deleting the language “for up to 180 days,” so that the paragraph describes the automatic extension period simply by referring to 8 CFR 274a.13(d) only. DHS is not changing the current reverification requirements an employer must follow for Form I-9, Employment Eligibility Verification,

at 8 CFR 274a.2(b)(1)(vii) that apply to automatic extensions. Additionally, to simplify the regulatory text, DHS is making an editorial change by eliminating the section symbol before the citation to section 274a.13(d) and replacing it with the complete CFR citation,

i.e.,

8 CFR 274a.13(d).

Employers must verify the identity and employment authorization of their new hires by examining documentation that evidences such employment eligibility and completing Form I-9.

See

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

• Amending existing 8 CFR 274a.13(d)(1): DHS is amending the provision by combining the content previously contained in 8 CFR 274a.13(d)(1), (d)(5) and (d)(6). The amended paragraph provides that the automatic extension period under 8 CFR 274a.13(d)(1) (in effect prior to the effective date of this final rule) for applicants who had their renewal EAD applications filed and adjudicated prior to May 4, 2022, was 180 days. The amended provision also provides that the automatic extension period for renewal EAD applications pending on, or filed on or after May 4, 2022, is up to 540-days. Furthermore, DHS is clarifying that the up to 540-day EAD automatic extension period starts the day after the expiration date found on the face of the EAD.

• 8 CFR 274a.13(d)(1)(i): DHS is amending paragraph (d)(1)(i) to clarify that a renewal EAD application for Temporary Protected Status (TPS)-related EADs is timely filed under 8 CFR 274a.13(d)(1) when it is filed during the

re-registration

filing period in the applicable

Federal Register

notice. (Previously, the regulations contained a reference to the filing period; DHS is adding the term “re-registration for clarity.)

• Amending existing 8 CFR 274a.13(d)(3): DHS is eliminating the reference to the up to 180-day automatic extension period and replacing it with the up to 540-day period.

• Removing 8 CFR 274a.13(d)(5) and (d)(6): DHS is removing the provisions that were added as part of the 2022 TFR and the 2024 TFR. DHS has incorporated applicable content as part of the amendments made to 8 CFR 274a.13(d)(1).

• Revising the authority citations to 8 CFR part 274a: DHS is revising the authority citation to 8 CFR part 274a by adding 8 U.S.C. 1105a, which was inadvertently removed by another DHS rule. DHS is furthermore amending the authority by adding reference to INA 208, 214, and 244, 8 U.S.C. 1158, 1184, and 1254a, that serve as sources of statutory authority for employment authorization.

D. Severability

In issuing this final rule, it is DHS's intention that the rule's various provisions be considered severable from one another to the greatest extent possible. For example, if a court of competent jurisdiction were to hold that the automatic extension may not be applied to a particular category of renewal EAD applicants or in a

particular circumstance, DHS would intend for the court to leave the remainder of the rule in place with respect to all other covered persons and circumstances. DHS's overarching goal is to reduce the likelihood of lapses in employment authorization and/or EAD validity that would result in substantial and unnecessary harm to noncitizens who timely applied for a renewal EAD in certain categories, their families, their employers, and the public at large. This final rule will provide greater financial stability for eligible renewal EAD applicants and maintain continuity of business operations for their employers.

E. Summary of Costs and Benefits

This final rule—which finalizes the 2024 TFR and permanently increases the automatic extension period for employment authorization and the validity of certain EADs from up to 180 days to up to 540 days—will provide long-term predictability and reduced anxiety around job stability for EAD renewal applicants. When unforeseen future circumstances cause processing times to extend beyond 180 days and result in large scale lapses in renewal EADs, this permanent adjustment of the automatic extension period to 540 days will result in benefits and cost savings, such as stabilized earnings and avoided labor turnover costs.

USCIS examined the benefits of the 2022 TFR and 2024 TFR and estimates that from FY 2023 to FY 2027 these rules result in average stabilization of earnings worth $10.0 billion to employment-authorized noncitizens and average cost savings of $3.5 billion to U.S. employers from avoided labor turnover and are expected to yield an average $1.1 billion in employment tax transfer payments using a 2 percent discount rate (see Table 17 for more information). While the EAD end dates are known to USCIS and can be used to accurately project at what date an EAD might lapse if not adjudicated, there is uncertainty around the monetized, economic impacts due to possible changes in the timing of EAD renewal filing behavior, adjudication resources and completion rates, and the duration of lapses experienced by workers of varying wages in the absence of any changes to the automatic extension period. The Regulatory Impact Analysis discusses the low and high-end estimates that bound the expected impacts described above.

II. Background

Since the promulgation of 8 CFR 274a.13(d) in 2016,

authorizing the up to 180-day automatic extension period for certain renewal EAD applicants, USCIS' ability to process both initial and renewal EAD applications within USCIS' targeted processing times has been adversely impacted by a variety of unforeseen events and circumstances.

As a result, DHS has found it necessary to take actions to reduce the likelihood that applicants for renewal EADs who are eligible for an automatic extension of their EAD validity under 8 CFR 274a.13(d) experience lapses in their employment authorization and/or proof of employment authorization because of USCIS processing delays and through no fault of their own.

DHS has found that such lapses in employment authorization and/or EAD validity could result in substantial and unnecessary harm to noncitizens who timely filed for extensions of employment authorization, their families, their employers, and the public at large.

See

81 FR 82398 (Nov. 18, 2016).

See

87 FR 26614, 26617-26 (May 4, 2022) (identifying USCIS' precarious fiscal status, the COVID-19 public health emergency, and dramatic increases in Form I-765 filings as some of the unforeseen events and circumstances); 89 FR 24628, 24634-40 (Apr. 8, 2024) (identifying, in addition to many of the same events and circumstances as the 2022 TFR, an increase in referrals to USCIS for Credible Fear Assessment and an increase in affirmative and defensive asylum filings as contributing factors to an increase in average processing time).

See

87 FR 26614 (May 4, 2022); 89 FR 24628 (Apr. 8, 2024).

These findings were made as part of the 2022 and 2024 TFRs.

See

87 FR 26614, 26636 (May 4, 2022), 89 FR 24628, 24655 (Apr. 8, 2024), for findings related to potential economic impacts caused by lapsed employment authorization and/or documentation.

In 2021, a surge in EAD applications, coupled with operational challenges exacerbated by the COVID-19 pandemic, resulted in a significant increase in renewal EAD application processing times.

The processing times increased to such a level that the 180-day automatic extension for certain pending renewal EAD applications under 8 CFR 274a.13(d) was insufficient to prevent many renewal applicants from experiencing a lapse in employment authorization and/or documentation while their renewal applications remained pending with USCIS.

See

87 FR 26614, 26618 (May 4, 2022) (explaining that the COVID-19 pandemic exacerbated USCIS' precarious financial situation, while a sudden and dramatic increase in Form I-765 filings further hampered USCIS' efforts to return to a steady pace in adjudications).

See

87 FR 26614, 26640 (May 4, 2022).

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

This measure helped minimize gaps in employment authorization and/or EAD validity for eligible renewal EAD applicants, while giving USCIS the opportunity to address its backlogs through operational and sub-regulatory measures and work toward its goal of returning to regular 3-month processing times.

See

87 FR 26614 (May 4, 2022).

The 2022 TFR proved to be very successful at minimizing disruption to renewal EAD applicants and their U.S. employers that would have otherwise resulted from USCIS processing delays.

Not only did the 2022 TFR immediately restore employment authorization and/or EAD validity for approximately 70,000 renewal EAD applicants who were already beyond the up to 180-day automatic extension period when the 2022 TFR published, but the 2022 TFR also helped nearly 280,000 renewal EAD applicants avoid a gap in employment authorization and/or employment authorization documentation based on renewal EAD applications filed from May 4, 2022 through October 26, 2023.

See

89 FR 24628, 24634 (Apr. 8, 2024).

Id.

However, for reasons fundamentally unrelated to the reasons stated in the 2022 TFR, the renewal EAD processing backlog grew despite USCIS' best efforts. In the middle of FY 2023, EAD application filings began to increase substantially. The historic 1 million application increase in initial and renewal EAD filings, compounded by the lack of a filing fee increase, the adjudicative demands of USCIS' responses to global humanitarian crises, and other increases in immigration benefit filings and court-ordered processing timeframes, created an insurmountable operational strain and increase in renewal EAD application processing times.

The processing times were at such a level that the 180-day automatic extension period for certain renewal EAD applications remained insufficient to prevent a large

number of lapses projected to start in May 2024.

The continued lengthy processing times was primarily due to a substantial increase in the number of initial EAD applications based on pending asylum applications (C08) that began in March 2023 and litigation regarding rules governing EAD applications that require USCIS to process initial EAD applications for asylum applicants within 30 days of filing. Other causes included a surge in initial EAD applications filed by individuals with pending asylum applications, the allocation of USCIS personnel to assist with historically high levels of encounters at the southwest land border between the ports of entry, and additional TPS designations in FY 2022 and FY 2023.

See

89 FR 24628 (Apr. 8, 2024). The 2024 TFR increased the automatic extension period from up to 180 days to up to 540 days for applicants who properly filed their EAD renewals on or after October 27, 2023, and that remained pending on May 4, 2024, as well as renewal EAD applications filed from May 4, 2024, through September 30, 2025.

USCIS projected that without the 2024 TFR, approximately 800,000 renewal applicants would have been in danger of losing their employment authorization and/or documentation in the period beginning May 2024 and ending March 2026.

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

See

89 FR 24628, 24660 (Table 7) (Apr. 8, 2024).

See

89 FR 24628, 24630 (Apr. 8, 2024).

With the 2024 TFR, DHS focused on near-term needs of applicants, their families, and employers by ensuring that, through the 2024 TFR, a substantially smaller number of applicants would experience near-term harmful effects that gaps in employment authorization and/or documentation could create. The 2024 TFR averted many of these imminent adverse consequences and provided DHS and USCIS with an additional window to consider long-term solutions by soliciting public comments, evaluating the effects of policy and operational changes, and continuing to identify new strategies and efficiencies in light of ongoing developments.

See

89 FR 24628, 24629 (Apr. 8, 2024).

After carefully considering public comments, as well as the operational realities associated with the changes described in the 2024 TFR, DHS has determined that the automatic extension period should be permanently increased from up to 180 days to up to 540 days. This final rule will be effective January 13, 2025.

Permanently increasing the automatic extension period will help avoid the gaps in employment authorization and/or documentation that could otherwise affect eligible renewal EAD applicants, their families, and their U.S. employers in those cases where USCIS is unable to process their renewal applications within the 180-day automatic extension period provided under the current regulation because of circumstances that are beyond the control of the applicant.

A. Legal Authority

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

et seq.,

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

et seq.

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

Further authority for this rule is found in:

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

See

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

Nielsen

Preap,

586 U.S. 392, 397 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(b) of the INA, 8 U.S.C. 1324a(b), which provides for the employment verification system and outlines employment eligibility verification requirements.

• 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

Courts have acknowledged that Congress delegated authority to DHS to grant or extend employment authorization to certain classes of noncitizens.

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

DHS,

50 F.4th 164, 191-192 (D.C. Cir. 2022) (“What matters is that section 1324a(h)(3) expressly acknowledges that employment authorization need not be specifically conferred by statute; it can also be granted by regulation.”). DHS is exercising this discretionary authority consistent with all applicable authorities, including the referenced authorities in the HSA, and sections 103, 208, 214, 244 and 274A(h)(3) of the INA, 8 U.S.C. 1103, 1158, 1184, 1254a and 1324a(h)(3), as well as the Administrative Procedure Act at 5 U.S.C. 553.

See Loper Bright Enterprises

Raimondo,

144 S. Ct. 2244, 2263 (2024) (“In a case involving an agency, of course, the statute's meaning may well be that the agency is authorized to exercise a degree of discretion. Congress has often enacted such statutes. For example, some statutes `expressly delegate' to an agency the authority to give meaning to a particular statutory term. Others empower an agency to prescribe rules to `fill up the details' of a statutory scheme, or to regulate subject to the limits imposed by a term or phrase that `leaves agencies with flexibility,' such as `appropriate' or `reasonable.'”) (internal citations omitted).

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

B. Legal Framework for Employment Authorization and Verification

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

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

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 in most cases 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

For certain eligibility categories listed in 8 CFR 274a.12(a) (the first class) and all eligibility categories listed in 8 CFR 274a.12(c) (the third class), as well as additional categories specified in the Form I-765 instructions,

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 approved under CFR 274a.12(a), the resultant EAD provides the noncitizen with proof of employment authorization incident to status or circumstance. Certain noncitizens may file EAD applications concurrently with related benefit requests if permitted by the applicable form instructions or as announced by USCIS.

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

DHS, USCIS, 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.

See

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

e.g.,

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

See

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

See

DHS, USCIS,

Employment Authorization for Certain H-4, E Dependent Spouses

(last reviewed/updated Aug. 2, 2024),

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 Oct. 23, 2024).

See

8 CFR 274.12(a) and (c).

3. Automatic Extensions of EADs for Renewal Applicants and Related Employment Eligibility Verification Requirements for Employers

i. Renewing Employment Authorization and/or EADs

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

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 TPS beneficiaries, may have immigration status that confers employment authorization that continues past the expiration date stated on their EADs. Nevertheless, such noncitizens may wish to renew their EAD to have acceptable evidence of their continuous employment authorization for various purposes, such as presenting evidence of employment authorization and identity to their employers for completion of Form I-9, Employment Eligibility Verification. Failure to renew their EADs prior to the expiration date may result in job loss if such noncitizens do not have or cannot present alternate acceptable evidence of employment authorization to show their employers, as employers who continue to employ noncitizens without employment authorization may be subject to criminal penalties and/or civil monetary penalties.

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 Form I-9.

See

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

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

(last visited Oct. 23, 2024). An employer that does not properly complete Form I-9, which includes reverifying continued employment authorization, or continues to employ an individual with knowledge that the individual is not authorized to work, may be subject to civil money penalties.

See

DHS, USCIS,

M-274, Handbook for Employers, 11.8 Penalties for Prohibited Practices, 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 INA sec. 274A, 8 U.S.C. 1324a.

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

See

8 CFR 103.2, 106.2, and 274a.13(a);

see

DHS, USCIS,

Form I-765, Instructions for Application for Employment Authorization, https://www.uscis.gov/sites/default/files/document/forms/i-765instr.pdf

(last visited Oct. 23, 2024). In reviewing the EAD application, USCIS ensures that the fee was paid, a fee waiver was granted, or a fee exemption applies.

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

If an eligible noncitizen is not able to obtain renewal of their employment authorization and/or EAD before it expires, the noncitizen and the employer could experience adverse

consequences. For the noncitizen, the lack of renewal could cause job loss, gaps in employment authorization and/or documentation, and loss of income. For the noncitizen's employer, the disruption may cause instability with business continuity or other financial harm. In addition, under 8 CFR 274a.2(b)(1)(vii), if an employee's employment authorization and/or documentation expires, their employer must reverify or update the employee's Form I-9 to reflect that the employee is still authorized to work in the United States; otherwise, the employee can no longer work. No later than the date employment authorization expires, employees must present unexpired acceptable documentation that demonstrates continued authorization to work.

The employer is required to reverify or update information on the employee's Form I-9 to record the employee's evidence of continued employment authorization. Employers who fail to properly complete Forms I-9 including reverification are subject to civil money penalties for paperwork violations.

Employers must terminate employment of employees who have gaps in their employment authorization documentation and are not able to reverify or risk being fined under the employer sanctions provisions in section 274A of the INA, 8 U.S.C. 1324a.

See

DHS, USCIS,

M-274, Handbook for Employers, 6.1, Reverifying Employment Authorization for Current Employees, https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274/60-completing-supplement-b-reverification-and-rehire-of-form-i-9/61-reverifying-employment-authorization-for-current-employees

(last visited Aug. 2, 2024).

See

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

Beyond the financial and economic impact that gaps in employment authorization or proof thereof creates for the noncitizen and the employer, if the noncitizen engages in unauthorized employment, such activity may render a noncitizen removable,

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.”), 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).

• 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 re-registration period in the applicable

Federal Register

notice;

see

81 FR 82398, 82455 (Nov. 18, 2016).

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

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 renewal EAD 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

DHS, USCIS,

Automatic Employment Authorization (EAD) Extension

(last reviewed/updated Oct. 9, 2024),

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

(last visited Oct. 23, 2024).

• 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, if the employment authorization category on their current EAD is either A12 or C19 (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 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 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 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 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 on the face 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 when the automatic extension requirements are met.

Therefore, when the “card expires” date on the front of the EAD is reached, an eligible noncitizen who is continuing their U.S. employment may present to their employer the Form I-797C receipt notice for the renewal EAD application to show that the validity of their EAD has been automatically extended as evidence of continued employment authorization, and the employer must update the previously completed Form I-9, Employment Eligibility Verification, to reflect the extended EAD expiration date based on the automatic extension while the renewal is pending. For new employment, the automatic extension date is recorded on the Form I-9 by the employee and the employer in the first instance. In either case, reverification of employment authorization or the EAD must occur when the automatic extension period terminates.

See

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

See

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

See

DHS,USCIS, “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

DHS, USCIS,

M-274 Handbook for Employers, 5.2 Temporary Increase of Automatic Extension of EADs from 180 Days to 540 Days

(last reviewed/updated Apr. 8, 2024),

https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274/50-automatic-extensions-of-employment-authorization-andor-employment-authorization-documents-eads-in/52-temporary-increase-of-automatic-extension-of-eads-from-180-days-to-540-days

(last visited Oct. 23, 2024).

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

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.

See

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

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

(last visited Oct.23, 2024); DHS, USCIS,

Employment Authorization Document

(last reviewed/updated June 7, 2024),

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

(last visited Oct. 23, 2024);

see also

81 FR 82398, 82456.

See

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

See

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

Since its promulgation in 2016, the automatic extension provision at 8 CFR 274a.13(d) has helped to minimize the risk of these negative consequences for applicants who are otherwise eligible for the automatic extension and their employers.

C. 2022 Temporary Final Rule

1. Overview

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

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

Federal Register

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 2022 TFR, if the renewal applicant timely filed an renewal EAD 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

8 CFR 274a.13(d);

see also

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

See

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

2. Impact of the 2022 Temporary Final Rule

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

Source: USCIS analysis of renewal EAD automatic extension expirations data, provided by DHS, USCIS, Office of Performance and Quality (OPQ), Claims 3 database; data provided November 2023.

D. 2024 Temporary Final Rule

1. Overview

Although the 2022 TFR prevented a substantial number of individuals from experiencing a lapse in their employment authorization and/or documentation, new circumstances fundamentally unrelated to the reasons that lead up to the 2022 TFR caused the processing times for renewal EAD applications to remain at such a level that the 180-day automatic extension period remained insufficient to prevent a large number of lapses projected to start in May 2024. The continued lengthy processing times was primarily due to a substantial increase in the number of initial EAD applications based on pending asylum applications (C08) that began in March 2023 and litigation regarding rules that require USCIS to process initial EAD applications for asylum applicants within 30 days of filing. Other causes included the allocation of USCIS personnel to assist with historically high levels of encounters at the southwest land border between the ports of entry, and additional TPS designations in FY 2022 and FY 2023.

Accordingly, DHS again took steps to help prevent certain renewal EAD applicants from experiencing a lapse in their employment authorization and/or documentation while their renewal applications remain pending while continuing to implement other solutions to return processing times to target levels. On April 8, 2024, DHS published a temporary final rule (“2024 TFR”) that, for certain renewal EAD applications filed beginning April 8, 2024, and ending on September 30, 2025, temporarily increased the automatic extension period from up to 180 days to up to 540 days. The 2024 TFR also increased the automatic extension period from up to 180 days to up to 540 days for applicants who properly filed their EAD renewals on or after October 27, 2023, and whose applications remained pending on or after April 8, 2024.

See

89 FR 24628, 24630 (Apr. 8, 2024).

Without the 2024 TFR, USCIS projected that approximately 800,000 renewal applicants would have been in danger of losing their employment authorization and/or documentation in the period beginning May 2024 and ending March 2026.

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

USCIS projections based on data available on July 1, 2024, show that this number is now approximately 388,000.

See

section V.A.2., Background and Population, Table 12, Population Projections by Month, Rounded to Thousands.

See

89 FR 24628, 24630 (April 8, 2024). At the time, the Bureau of Labor Statistics data showed that, as of December 2023, there were 0.7 unemployed persons per job opening.

See

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

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

(last visited Feb. 6, 2024).

2. Impact of the 2024 Temporary Final Rule

As with the 2022 TFR, the 2024 TFR succeeded at minimizing disruption to renewal EAD applicants and their U.S. employers that would have otherwise resulted from USCIS processing delays. The 2024 TFR was projected to prevent approximately 540,000 applicants from experiencing a temporary lapse in employment authorization and/or employment authorization documentation during the 2-year period beginning May 2024.

As of July 1, 2024, approximately 3,500 renewal applicants avoided at least 1 day of lapse in employment authorization and/or documentation due to the 2024 TFR.

The 2024 TFR also provided DHS and USCIS with additional time to consider long-term solutions by soliciting public comments, evaluating the effects of policy and operational changes, and continuing to identify new strategies and efficiencies in light of ongoing developments.

See

89 FR 24628, 24659, Table 6A.

Source: USCIS analysis of renewal EAD automatic extension expirations data, provided by DHS, USCIS, OPQ, Claims 3 database; data provided July 24, 2024.

See

section VI.A.2, Background and Population, for more information.

See

89 FR 24628, 24629 (Apr. 8, 2024).

III. Purpose and Discussion of the Final Rule

From time to time, one or more circumstances affecting USCIS operations have resulted in a significant increase in USCIS processing times for certain automatic extension-eligible categories of renewal EAD applications. Since the promulgation of the 180-day automatic extension rule in 2016, DHS deemed it necessary to issue TFRs in 2022 and 2024 to temporarily increase the automatic extension period to 540 days because a variety of circumstances resulted in processing times longer than the 180-day automatic extension period.

These TFRs were necessary to prevent a substantial number of renewal EAD applicants from experiencing a lapse in their employment authorization and/or documentation and to avert the significant harmful effect such lapses have for applicants, their families, their employers, and the public at large.

See

87 FR 26614 (May 4, 2022), 89 FR 24628 (Apr. 8, 2024).

Without this rule making permanent the increase of the automatic extension period from up to 180 days to up to 540 days provided by the 2024 TFR, the longer automatic extension period would cease to apply to renewal applications filed after September 30,

2025.

Given the history of filing surges and other unpredictable circumstances that have adversely impacted renewal EAD application processing times since the original automatic extension provision was promulgated in 2016,

DHS has now determined that a permanent increase in the automatic extension period from up to 180 days to up to 540 days is necessary for the long-term protection of applicants from a lapse in their employment authorization and/or documentation. DHS believes that if the automatic extension period is not permanently increased from up to 180 days to up to 540 days, many renewal EAD applicants may be in danger of experiencing a gap in employment authorization and/or EAD validity again in the future. Such lapses in employment authorization and EAD validity would result in substantial and unnecessary harm to noncitizens who timely filed for extensions of employment authorization, their families, their employers, and the public at large.

This final rule incorporates the content of the automatic extension provisions at 8 CFR 274a.13(d)(5) (promulgated under the 2022 TFR) and (d)(6) (promulgated under the 2024 TFR) into 8 CFR 274a.13(d)(1) and removes them from the CFR. 8 CFR 274a.13(d)(5) was effective until October 26, 2023, and, but for this final rule, would have remained in the CFR until October 15, 2025. But for this final rule, 8 CFR 274a.13(d)(6) would have been effective until September 30, 2025, and would have remained in the CFR until September 20, 2027. Thus, in this final rule, DHS is accounting for the content of both 8 CFR 274a.13(d)(5) and (d)(6) periods and the adoption of a permanent 540-day automatic extension period effective going forward. To simplify the regulatory text but maintain the content of all provisions for Form I-9, Employment Eligibility Verification, purposes, DHS is consolidating all of the automatic extension periods into one provision at 8 CFR 274a.13(d)(1). Applicants eligible for the up to 540-day automatic extension period under 8 CFR 274a.13(d)(5) and (d)(6) continue to be eligible under this final rule. This final rule, however, does not grant additional 540-day extension periods to those who were previously able to take advantage of a 540-day automatic extension period, even if the case remains pending at or before the 540-day mark under previous DHS rules.

81 FR 82398, 82455 (Nov. 18, 2016).

To avert possible gaps in employment authorization and/or EAD validity for certain renewal EAD applicants and the harmful effects caused by such lapses, DHS is permanently amending existing DHS regulations to increase the automatic extension period to up to 540 days from the expiration date stated on their EADs. DHS is taking this step after having published two TFRs addressing the matter and seeking public comments on long-term solutions.

DHS is applying this rule to all renewal EAD application categories eligible for automatic extension pursuant to 8 CFR 274a.13(d).

In both TFRs, DHS sought public comments. As provided in Section IV, Discussion of Public Comments, as part of the 2024 TFR, DHS not only sought comments on the entire rule, but also asked commenters specifically to address options for long-term solutions, including whether the solution provided in the TFR should be made permanent or be subject to modification.

See

2024 TFR, at 24628. In this final rule, DHS is responding to these comments and finalizing the approach by permanently codifying in DHS regulations the solutions of the prior TFRs. Therefore, this final rule complies with the procedural requirements for rulemaking under the Administrative Procedure Act (APA), 5 U.S.C. 553, having provided adequate notice and an opportunity to comment before promulgating this final rule.

See Little Sisters of the Poor Saints Peter & Paul Home

Pennsylvania,

591 U.S. 657, 684-687 (2020) (holding that an interim final rule's “request for comments readily satisfied the APA notice requirements”).

The following sections in this preamble describe the history of a variety of unpredictable circumstances, such as sudden spikes in EAD application filings, and their impacts, which resulted in the need for the 2022 and 2024 TFRs. These examples illustrate that, without this rule permanently extending the automatic extension period from up to 180 days to up to 540 days, DHS, renewal EAD applicants, their families, and their employers would face increased uncertainty about the possibility of lapsed employment authorization and/or documentation in the future. DHS notes that it is not an efficient use of its resources to issue TFRs whenever circumstances arise resulting in significant increases in renewal EAD application processing times. DHS believes that this action will save government resources and provide predictability and stability to applicants, families, employers, and communities.

DHS is therefore permanently extending the automatic extension period from up to 180 days to up to 540 days in order to guard against the effects of unpredictable future events such as those that led to the two TFRs.

A. Circumstances Resulting in the 2022 Temporary Final Rule

1. USCIS Enjoined From Increasing Its Filing Fees

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

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

(including fees for Form I-765), meaning that USCIS was unable to fully cover the costs of administering current and projected volumes of immigration benefit requests.

USCIS' Field Operations Directorate (FOD) initiated a hiring freeze in December 2019; USCIS' Service Center Operations Directorate (SCOPS) did the same starting in February 2020.

See

81 FR 73292, 73302 (Oct. 24, 2016).

DHS promulgated a new Fee Rule in August 2020 to address this disparity between its filing fees and the costs of adjudicating immigration benefit requests.

In September 2020, however, the 2020 Fee Rule was enjoined before it took effect.

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

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

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

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

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

Immigration Legal Resource Center, et al.

Wolf, et al.,

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

See

81 FR 73292 (Oct. 24, 2016).

See

85 FR 46788 (Aug. 3, 2020). Additional categories exempt from the filing fee include 8 CFR 274a.12(a)(8) and (10) and (c)(1), (4), (7), and (16).

USCIS continued to have to rely on the fee schedule established in the 2016 Fee Rule, which did not fully account for costs associated with adjudicating benefit requests. This unsustainable fiscal situation resulted in the inability to fund sufficient new officer positions to handle the agency's adjudication workload.

This meant, in part, that USCIS was already in a precarious financial position with regard to staffing when the COVID-19 pandemic began. The litigation enjoining the implementation of the 2020 Fee Rule is an example of an external event that negatively impacted renewal EAD application processing times.

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

On January 31, 2024, DHS promulgated a new Fee Rule, which became effective April 1, 2024.

See

89 FR 6194 (Jan. 31, 2024).

2. Public Health Emergency Caused by the COVID-19 Pandemic

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

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

Effective October 15, 2021, HHS renewed the public health emergency determination.

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

See

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

https://aspr.hhs.gov/legal/PHE/Pages/2019-nCoV.aspx

(last visited Aug. 19, 2024).

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

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

https://aspr.hhs.gov/legal/PHE/Pages/COVID-15Oct21.aspx

(last visited Aug. 23, 2024).

See

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

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

(last visited Aug. 19, 2024).

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

100

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

101

In an attempt to avoid these furlough measures, USCIS took steps to preserve sufficient funds to meet payroll and carryover obligations. These measures included substantial cuts for supplies, facilities, overtime, and contractor support services, as well as an agency-wide hiring freeze lasting from May 1, 2020, through March 31, 2021. The loss of overtime funds hindered USCIS' ability to address and mitigate backlogs with existing staff, which has been a strategy used successfully in the past to ensure processing times remain within goals.

102

This option was not available in 2020, due to USCIS' worsening fiscal situation beginning in late 2019 and continuing into 2020 and part of 2021.

100

See

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

See

2020 USCIS Statistical Annual Report, p. 4.

101

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

102

For example, in FY 2019, USCIS used $5.52 million of overtime funds for assigned staff to conduct credible and reasonable fear interviews, as well as Migrant Protection Protocols (MPP) non-refoulement interviews.

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

103

The hiring freeze also meant that the higher-than-normal number of vacancies could not be filled. Additionally, several initiatives took staff away from their normal duties such as efforts relating to unaccompanied children and processing petitions and applications by or on behalf of Afghan evacuees. The loss of contractor support services also hindered USCIS' ability to intake filings efficiently and prepare cases for adjudication by officers.

103

See

DHS, USCIS, News Release,

Deputy Director for Policy Statement of USCIS' Fiscal Outlook

(June 25, 2020),

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

All these factors contributed to a decrease in Form I-765 completions. For example, in FY 2019, the Service Center Operations Directorate (SCOPS) allocated 343,399 officer hours to its Form I-765 workload

104

and completed 1,443,235 adjudications. By comparison, in FY 2020, SCOPS allocated 327,947 (or approximately 4.5 percent fewer) officer hours to the same workload and subsequently was only able to complete 1,379,745 (or approximately 4.4 percent fewer) adjudications. These reductions were partly attributable to the overall decrease in staff. At the start of FY 2020, SCOPS had 5,102 employees. This diminished to 4,886 at the start of FY 2021 and 4,731 at the start of FY 2022 as the effects of attrition and the hiring freeze continued. This overall decrease of approximately 7.3 percent did not include the additional loss of I-765 adjudication hours that stemmed from SCOPS supporting several programs requesting detailees.

105

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

104

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

105

A detailee is an employee who is temporarily detailed,

i.e.,

temporarily assigned, to a different position for a specified period, with the employee returning to his or her regular duties at the end of the detail.

USCIS was also unable to surge additional resources to increase officer hours adjudicating Form I-765 applications because of USCIS' limited resources and the need to manage other competing priorities in FY 2021. For example, USCIS surged officers to adjudicate employment-based Form I-485 applications to minimize the number of employment-based immigrant visas that would go unused at the end of FY 2021, after an extraordinary number of such unused family-preference visa numbers from FY 2020 “fell across” to the employment-based visa allocation for FY 2021,

106

due primarily to Department of State consular closures caused by the COVID-19 pandemic.

106

See generally

INA secs. 201(d)(2)(C), 8 U.S.C. 1151(d)(2)(C),

Table 1—Impact of Steadily Decreasing Staffing Levels on SCOPS' Form I-765 Completions (Initial and Renewal Applications)

Fiscal year

Officer hours allocated

Form I-765 completions

2019

343,399

1,443,235.

2020

327,947 (approximately 4.5 percent fewer than 2019)

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

2021

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

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

Note:

This data does not include contractor hours, which also were severely impacted by USCIS' fiscal situation as USCIS was forced to reduce the number of contractors available to assist with case processing. At the time of the 2022 TFR, SCOPS' contractor staff had been reduced by approximately 8.2% since October 1, 2020.

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

107

observed a similar reduction in staff and completions.

107

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

Table 2—Impact of Steadily Decreasing Staffing Levels on NBC's Form I-765 Completions (Initial and Renewal Applications)

Fiscal year

Officer hours allocated

Form I-765 completions

2019

115,510

612,464.

2020

112,266 (approximately 2.8 percent fewer than 2019)

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

2021

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

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

Note:

Although the United States is no longer in a pandemic-related health emergency, this is an example of an unanticipated circumstance that adversely impacted USCIS renewal EAD processing times and was a significant factor in the decision to issue the 2022 TFR.

3. Unprecedented Increase in EAD Application Filings

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

108

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

See Casa de Maryland

Wolf,

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

Table 3—Surge in Renewal Form I-765 Filings

Month

C08 category

C09 category

C10 category

Total

February 2021

30,857

14,661

8,367

53,885

March 2021

52,007

19,589

10,840

82,436

April 2021

42,101

15,189

9,134

66,424

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

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

as shown in Table 4.

109

The increase in pending asylum cases contributed to the increase in C08 renewal filings in FY 2021, which further impacted the renewal EAD application backlog.

109

See

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

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

(last visited Aug.19, 2024) (“The affirmative asylum backlog is the result of a prolonged, significant increase in affirmative asylum application filings and credible fear screenings, which are processed by the U.S. Citizenship and Immigration Services (USCIS) asylum offices. Between FY 2013 and FY 2017, despite significant staffing increases, receipt growth in asylum office workloads outpaced the expansion of asylum office staffing and the establishment of new or expanded facilities needed to support additional staffing growth.”).

110

See

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

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

(last visited Aug.19, 2024).

111

Data reflects affirmatively filed Form I-589 asylum applications and do not include defensive asylum claims before a DOJ EOIR immigration court. See USCIS, Number of Service Wide Forms, October 1, 2021-December 31, 2021(last updated Feb. 2022),

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

(last visited Aug. 19, 2024).

Table 4—Total Asylum Cases Pending

DOJ

110

USCIS

111

Total

Total Asylum Cases Pending in:

FY 2017 (Sep 2017)

377,140

289,835

666,975

FY 2018 (Sep 2018)

473,510

319,202

792,712

FY 2019 (Sep 2019)

608,976

339,836

948,812

FY 2020 (Sep 2020)

647,923

386,014

1,033,937

FY 2022 (Dec 2021)

628,551

432,341

1,060,892

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

112

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

In CY 2021, USCIS received approximately 1,290,000 initial Forms I-765, which was 23 percent higher than the volume received in CY 2020 (approximately 1,050,000) and 18 percent higher than the volume received in CY2019 (approximately 1,090,000). Similarly, in CY 2021, USCIS received approximately 1,260,000 renewal EAD applications, which was 21 percent higher than the volume received in CY 2020 (approximately 1,040,000) and 13 percent higher than the volume received in CY 2019 (approximately 1,120,000).

Table 5A—Initial Form I-765 Filings

Calendar year

Form

I-765

filings

Surge or difference

2019

1,090,000

2020

1,050,000

4 percent lower than 2019.

2021

1,290,000

18 percent higher than 2019.

23 percent higher than 2020.

Table 5B—Renewal Form I-765 Filings

Calendar year

Form

I-765

filings

Surge or difference

2019

1,120,000

2020

1,040,000

7 percent lower than 2019.

2021

1,260,000

13 percent higher than 2019.

21 percent higher than 2020.

4. Combined Impact on Renewal EAD Application Processing Times

In summary, because of the financial strains caused by the combination of the litigation resulting in the enjoining of the 2020 Fee Rule and the impact of the COVID-19 pandemic, USCIS was unable to handle the concurrent spike and monthly increase in renewal EAD filings. The average monthly receipts in 2021 for the automatic extension categories were 60,300, which was 13,500 per month (or 29 percent) higher than 2020 monthly averages. In addition to this higher overall receipt volume in 2021, there was a surge in receipts in March 2021 (88,500) and April 2021 (71,200) that led to a rapid increase in pending applications. On top of the higher receipt volumes, due to staffing issues, the average number of monthly completions in 2021 was 33,900 per month, which was 10,600 per month (or 24 percent) lower than 2020 monthly averages. The combination of higher receipts and lower completions led to increased processing times, which downstream resulted in higher numbers of renewal applications pending past the 180-day automatic extension period.

B. Circumstances Resulting in the 2024 Temporary Final Rule

1. Overview

On April 8, 2024, DHS published the 2024 TFR that, for certain renewal EAD applications filed during a limited period that ends on September 30, 2025, again temporarily increased the automatic extension period from up to 180 days to up to 540 days.

113

The multiple circumstances that resulted in the 2024 TFR are summarized in the following sections. These examples illustrate the unpredictable events that arise from time to time and render the 180-day automatic extension period insufficient to protect renewal applicants and their employers from the harms resulting from a lapse in employment authorization and/or documentation.

113

See

89 FR 24628 (Apr. 8, 2024). The 2024 TFR also increased the automatic extension period from up to 180 days to up to 540 days for applicants who properly filed their EAD renewals on or after October 27, 2023.

2. Surge in Initial EAD Application Filings by Pending Asylum Applicants

In FY 2023, USCIS experienced a surge in EAD applications primarily

114

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

115

The increase in initial C08 EAD applications placed a substantial strain on USCIS resources due to the high volume of cases.

114

Other factors related to EAD processing affected USCIS' workload and personnel, such as processing EADs for noncitizens who were paroled after scheduling an appointment through CBP One or through the Cuban, Haitian, Nicaraguan, and Venezuelan parole processes. However, these processes did not significantly compound the pressures on EAD renewal processing.

115

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

In addition to increased EAD filings, processing of C08 EAD applications was also affected by litigation regarding two rules, published in 2020, that amended the regulations governing EAD applications associated with asylum applications.

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

116

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

117

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

118

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

119

116

See

59 FR 62284, 62289 (Dec. 5, 1994).

117

On July 26, 2018, in

Rosario

USCIS,

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

See

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

118

See

85 FR 37502 (June 22, 2020).

119

See

85 FR 38532 (June 26, 2020).

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

CASA

120

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

Asylumworks

121

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

CASA

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

Asylumworks

vacating the 2020 Asylum EAD Rules in their entirety.

122

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

123

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

Asylumworks.

120

See CASA de Maryland, Inc.

Wolf,

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

121

Asylumworks

Mayorkas,

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

122

See 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 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).

123

See

87 FR 57795 (Sept. 22, 2022).

As a result of the

Asylumworks

court order, since February 7, 2022, USCIS has been required to process initial EAD applications for all asylum applicants within 30 days of filing for their EAD. While the court ordered a return to a regulatory requirement that had existed until 2020, the burden created by the court's order was significant and impacted overall EAD processing due to the surge in C08 EAD applications.

Following the

Asylumworks

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

124

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

3. Significant Increase in Referrals to USCIS for Credible Fear Assessments

For the period leading up to the 2024 TFR, economic and political instability around the world has been fueling high levels of global migration, including in the Western Hemisphere.

125

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

126

encountered approximately 222,000 noncitizens between ports of entry, then second only to May 2022 (approximately 224,000 encounters). DHS announced sweeping new measures to address the anticipated further increase in migration, including a new rule that introduced a rebuttable presumption of asylum ineligibility for certain noncitizens

127

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

128

The number of encounters was highly variable. For example, July 2023 saw 132,642 encounters while December 2023 saw 249,735 encounters, before falling again in January 2024 (176,205).

129

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

130

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

131

Following implementation of a Presidential Proclamation and related interim final rule in June 2024, crossings between ports of entry fell by over 55 percent.

132

125

See

88 FR 31314, 31315 (May 16, 2023) (discussing the reasons for the highest levels of global migration since World War II).

126

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

See

DHS, CBP,

Along the U.S. Borders

(last modified Sept. 6, 2024),

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

(last visited Oct. 23, 2024).

127

See

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

128

See

DHS,

Fact Sheet: U.S. Government Announces Sweeping New Actions to Manage Regional Migration

(Apr. 27, 2023),

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

(last visited Oct. 23, 2024).

129

See

DHS, CBP, Southwest Land Border Encounters (last modified Oct. 22, 2024),

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

(last visited Oct. 23, 2024).

130

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

See

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

See

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

in some cases, by an asylum officer.

See

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

see also

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

i.e.,

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

See

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

131

See

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

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

(last visited Oct. 23, 2024).

132

See

DHS,

Fact Sheet: Joint DHS-DOJ Final Rule Issued to Restrict Asylum Eligibility for Those Who Enter During High Encounters at the Southern Border

(Sept. 30, 2024),

https://www.dhs.gov/news/2024/09/30/fact-sheet-joint-dhs-doj-final-rule-issued-restrict-asylum-eligibility-those-who

(last visited Oct. 23, 2024).

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

133

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

134

Thus, many USCIS detailees were required to take a full-time asylum officer training course lasting several weeks in addition to the 120 day detail period. Diverting adjudicatory resources by training and detailing adjudicators to conduct credible fear screenings significantly strained operational resources for renewal EAD adjudications, resulting in increased processing times.

135

133

See

DHS,

Fact Sheet: U.S. Government Announces Sweeping New Actions to Manage Regional Migration

(Apr. 27, 2023),

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

(last visited Oct. 23, 2024) (“DHS and the Department of Justice (DOJ) are also surging asylum officers and immigration judges, respectively, to complete immigration proceedings at the border more quickly.”). Approximately 157 immigration officer FTEs participated in a credible fear detail in FY 2023, and approximately 212 FTEs participated from May 2023 to January 2024.

134

See

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

135

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

See

White House, Office of Management and Budget,

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

(last visited Oct. 23, 2024).

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

4. Impact of Asylum Filing Surges and Backlogs on C08 Renewals

USCIS received historic levels of affirmative asylum applications in FY 2022 and FY 2023. In FY 2022, USCIS received more than 240,600 affirmative asylum applications.

136

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

137

Despite efforts to adjudicate these pending applications, backlogs for both affirmative (filed with USCIS) and defensive (filed with the Executive Office for Immigration Review (EOIR)) asylum applications have grown. Specifically, as of September 30, 2023, over 1.062 million affirmative asylum applications were pending with USCIS and 937,000 total asylum applications were pending before EOIR, respectively. Owing to these backlogs, USCIS has seen an increase in C08 renewal EAD applications. Because initial C08 EADs issued prior to September 2023 were valid for a period of 2 years, the backlogs in asylum applications at USCIS and EOIR were projected to result in over 770,000 C08 renewal EAD application filings during the effective period of the 2024 TFR.

138

136

See

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

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

(last visited Oct. 23, 2024).

137

See

DHS, USCIS, 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 Oct. 23, 2024).

138

See

TFR Modeling Methodology.

5. Additional Designations for Temporary Protected Status

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

139

TPS provides temporary protection from removal and employment authorization to eligible nationals of designated countries present in the United States.

140

The Secretary may designate a country for TPS if the conditions in a country meet certain statutory criteria, including preventing the country's nationals from returning safely due to ongoing armed conflict or extraordinary and temporary conditions or rendering the country temporarily unable to handle adequately the return of its nationals due to an environmental disaster that has resulted in a substantial but temporary disruption in living conditions.

141

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

142

139

For a list of designated countries, see DHS, USCIS,

Temporary Protected Status

(last reviewed/updated Oct. 17, 2024),

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

(last visited Oct. 23, 2024).

140

See

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

141

See

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

142

See

6 U.S.C. 275.

See

INA sec. 244(a); 8 U.S.C. 1254a(a).

143

See

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

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

143

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

by the Secretary pursuant to statutory requirements.

144

See

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

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

145

Cameroon,

146

Ethiopia,

147

Sudan,

148

and Ukraine.

149

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

150

Haiti,

151

Syria,

152

Somalia,

153

South Sudan,

154

and Yemen,

155

which allowed existing TPS beneficiaries to re-register for TPS and apply for renewal of their EADs and allowed additional qualifying nationals who arrived in the United States after the prior designation to apply for TPS EADs. The Secretary also extended the TPS designation for El Salvador,

156

Honduras,

157

Nicaragua,

158

Nepal,

159

and Venezuela,

160

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

145

87 FR 30976 (May 20, 2022).

146

87 FR 34706 (June 7, 2022).

147

87 FR 76074 (Dec. 12, 2022).

148

87 FR 23202 (Apr. 19, 2022).

149

87 FR 23211 (Apr. 19, 2022).

150

87 FR 58515 (Sept. 27, 2022).

151

88 FR 5022 (Jan. 26, 2023).

152

87 FR 46982 (Aug. 1, 2022).

153

88 FR 15434 (Mar. 13, 2023).

154

88 FR 60971 (Sept. 6, 2023).

155

88 FR 94 (Jan. 3, 2023).

156

88 FR 40282 (June 21, 2023).

157

88 FR 40304 (June 21, 2023).

158

88 FR 40294 (June 21, 2023).

159

88 FR 40317 (June 21, 2023).

160

87 FR 55024 (Sept. 8, 2022).

These additional designations, extensions, and redesignations resulted in a significant increase in initial and renewal EAD filings. In FY 2021, USCIS received 148,898 EAD applications filed by TPS applicants. Of these, 24,172 were renewal EAD applications. In FY 2022, USCIS received 100,484 EAD applications filed by TPS applicants. Of these, 33,352 were renewal EAD applications. In FY 2023, USCIS received 329,325 EAD applications filed by TPS applicants, which represent an over 200 percent increase in TPS-related EAD applications from FY 2022 to FY 2023. Of these, 230,363 were renewal EAD applications as a result of the withdrawal of the TPS terminations and extensions of TPS in that fiscal year.

161

As of January 2024, prior to publication of the 2024 TFR, the Secretary had redesignated and extended TPS for Cameroon

162

and Syria.

163

161

The 6 countries impacted by the withdrawal of TPS Terminations (El Salvador, Haiti, Honduras, Nepal, Sudan, Nicaragua) accounted for approximately 19,000 renewal EAD applications in FY2022 and 193,000 renewal applications in FY2023. Source: USCIS analysis 10/11/2024.

162

88 FR 69945 (Oct. 10, 2023).

163

89 FR 5562 (Jan 29, 2024).

164

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

The increased number of TPS-based EAD filings (particularly in renewal EAD applications in the A12 category) from FY 2022 to FY 2023 further stretched limited USCIS resources and contributed to the longer processing times for renewal EAD applications overall.

6. Combined Impact on Renewal EAD Application Processing Times

The events described in the previous sections resulted in a significant increase in USCIS processing times for several categories of automatic extension-eligible renewal EAD applications. For the period leading up to the 2024 TFR, the most significant contributing factor to these increased processing was the substantial surge in the number of initial EAD applications based on pending asylum applications (C08) that began in March 2023. This spike in filings, followed by a sustained increase in receipts during FY 2023,

164

substantially increased processing times for renewal EAD applications because USCIS was required to prioritize adjudication of C08 initial EAD applications to comply with court-ordered deadlines for processing these case types and to address other priorities.

As shown in Tables 6A. through C. below, in FY 2023, USCIS received approximately 3.49 million EAD applications, which was 50 percent higher than the volume received in FY 2022 (approximately 2.33 million). USCIS received approximately 2.37 million initial EAD applications in FY 2023, which was 77 percent higher than the volume of initial EAD applications received in FY 2022 (approximately 1.34 million). USCIS received approximately 1.12 million renewal EAD applications in FY 2023, which was 13 percent higher than the volume received in FY 2022 (approximately 990,000).

Table 6A—Initial and Renewal EAD applications

Fiscal year

EAD

applications

Difference

2022

2,330,000

2023

3,490,000

50 percent higher than 2022.

Table 6B—Initial EAD applications

Fiscal year

EAD

applications

Difference

2022

1,340,000

2023

2,370,000

77 percent higher than 2022.

Table 6C—Renewal EAD applications

Fiscal year

EAD

applications

Difference

2022

990,000

2023

1,120,000

13 percent higher than 2022.

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

ER13DE24.072

Consequently, the efforts USCIS undertook to improve its processing times for renewal EAD applications, including increasing its staffing levels, were insufficient to keep up with the substantial and unanticipated increase in EAD application filings.

By February 2024, prior to the issuance of the 2024 TFR, the 80th percentile processing time

165

for renewal C08 EAD applications was 16 months, well beyond the targeted three-month processing time. By February 2024, USCIS was also behind in its adjudications of other automatic extension categories, including C09 (pending adjustment of status application, 7.5 months), C10 (pending application for suspension of deportation, 16.3 months), A12 (TPS, 11.2 months), A05 (asylee, 4.8 months), and A10 (granted withholding of deportation or removal, 6.6 months).

165

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

See

DHS, USCIS,

Case Processing Times, https://egov.uscis.gov/processing-times/more-info

(last visited Oct. 23, 2024).

Table 7 shows that the number of pending EAD applications did not materially improve and, by the end of February of 2024, was approximately 1.40 million applications, which posed a challenge for USCIS and also impacted processing times for renewal EAD applications eligible for automatic extensions because of the limited amount of USCIS resources that can be allocated to those case types. The total number of pending automatic extension renewal EAD applications at the end of February 2024 was approximately 439,000.

Table 7—Pending EAD Applications by Month

Month

All EAD

applications

Automatic

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, Office of Performance and Quality (OPQ), CLAIMS3, ELIS, retrieved March 15, 2024.

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

166

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

167

These additional renewal applications added to the backlog, given that USCIS completed approximately 49,100 automatic extension-eligible renewal EAD applications per month at that time.

168

166

See

Table 7 (Source: DHS, USCIS, OPQ, CLAIMS3, ELIS, retrieved March 15, 2024). The vast majority of these renewal applicants eligible for automatic extension fell into three filing categories: (1) noncitizens who have properly filed applications for asylum and withholding of deportation or removal (C08); (2) noncitizens who have filed applications for adjustment of status to lawful permanent resident under section 245 of the INA, 8 U.S.C. 1255 (C09); and (3) noncitizens who have filed applications for suspension of deportation under section 244 of the INA (as it existed prior to April 1, 1997), cancellation of removal pursuant to section 240A of the INA, 8 U.S.C. 1229b, or special rule cancellation of removal under section 309(f)(1) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (C10). In FY 2023, these three filing categories made up nearly 61 percent of the renewal EAD receipts filed in categories eligible for the automatic extension of employment authorization. Broken down further among these three categories: the C08 category comprised approximately 41 percent of the renewal EAD receipts filed in categories eligible for the automatic extension, while the C09 category comprised approximately 10 percent and the C10 comprised approximately 10 percent.

167

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

168

See

89 FR 24628, 24644 (Apr. 8, 2024).

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

In summary, based on a combination of factors, DHS projected at the time that, between May 2024 to March 2026, approximately 800,000 renewal applicants eligible for an automatic extension would exceed the 180-day automatic extension period unless the 2024 TFR was issued.

C. Automatic Extension Period of up to 180 Days in Current 8 CFR 274a.13(d)(1) Is Insufficient

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

169

and on the U.S. employer's responsibilities under the INA. DHS also acknowledges that the factors that lead to substantial increases in backlogs and prolonged renewal EAD application processing times are not the fault of applicants but have had and may continue to have significant adverse consequences for applicants and employers awaiting a USCIS decision on pending renewal EAD applications. The public comments received in relation to the 2022 and 2024 TFRs underscore the importance of employment authorization and EADs.

170

169

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

See

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

170

See

section IV. Discussion of Public Comments, in this preamble.

As illustrated by the examples elsewhere in this preamble,

171

a wide variety of often-unpredictable circumstances affecting USCIS operations have led to significant increases in USCIS processing times for several categories of renewal EAD applications. DHS has determined that if the automatic extension period is not permanently increased to 540 days, many EAD renewal applicants could in the future be in danger of experiencing a gap in employment authorization and/or EAD validity. Without a permanent 540-day automatic extension period, one or more events in the future, such as a surge in EAD application filings, may result in hundreds of thousands of renewal EAD applications remaining pending beyond the 180-day automatic extension period, and renewal applicants may lose their employment authorization and/or EAD validity through no fault of their own. DHS has also determined that reacting to such circumstances by providing temporary extensions through the means of TFRs is neither an efficient solution nor is it sustainable for DHS, USCIS, applicants and employers as such rapid policymaking exercises occupy scarce government resources and do not provide long-term stability and predictability for applicants, employers' business operations, and the community as a whole.

171

See

sections III. A-C. in this preamble.

As DHS has noted before in previous rulemakings, the loss of employment authorization for asylum applicants is especially dire because of the significant time that asylum applicants must wait to become employment-authorized in the first place.

172

By statute, asylum applicants cannot be approved for initial EADs until their asylum applications have been pending for at least 180 days.

173

This initial wait time exacerbates the often-precarious economic situations asylum seekers may be in as a result of fleeing persecution in their home countries.

174

Many lacked substantial resources to support themselves before they fled or spent much of what they had to escape their country and travel to the United States.

175

Those with resources may have been forced to leave what they had behind because they lacked the time to sell property or otherwise gather what they owned.

176

When whole families are threatened, the primary earner may be the first to travel to the United States to establish a new home before bringing the rest of the family.

177

The cost to travel to the United States is high, as is the relative cost of living.

178

In these circumstances, if the asylum seeker is unable to work for extended periods of time, it can not only negatively impact that individual, but the whole family as well.

179

For those who have already found jobs to support their needs, the potential for their initial EADs to expire prior to the approval and issuance of a renewed EAD may force them back into instability caused by a gap in their authorization to work.

180

172

See

87 FR 26614, 26619 (May 4, 2022) (explaining that a now-vacated regulation in effect from August 2020 through February 2022 did not allow asylum applicants to apply for employment authorization until their asylum applications had been pending for at least 365 days, and, even absent that regulation, INA 208(d)(2), 8 U.S.C. 1158(d)(2) does not allow their employment authorization applications to be approved until their asylum applications have been pending at least 180 days); 89 FR 24628, 24644 (Apr. 8, 2024) (same explanation).

173

See

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

174

See