Clarification of Discretionary Employment Authorization for Certain Aliens

DEPARTMENT OF HOMELAND SECURITY 8 CFR Parts 106, 241, and 274a [CIS No. 2805-25; DHS Docket No. USCIS-2026-0067] RIN 1615-AC98 Clarification of Discretionary Employment Authorization for Certain Aliens AGENCY:

U.S. Citizenship and Immigration Services, DHS.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Department of Homeland Security proposes to limit and clarify eligibility for discretionary employment authorization for aliens paroled into the United States temporarily for urgent humanitarian reasons or significant public benefit, who have been granted deferred action, or against whom a final order of removal exists and who are temporarily released from custody on an order of supervision. DHS further proposes to specify that aliens applying for employment authorization who admit to committing, have been arrested for, or have been convicted of certain criminal acts do not warrant a favorable exercise of discretion unless there are significant countervailing public interests, which may include assisting law enforcement activity in the United States.

DATES:

Submission of Public Comments: Written comments must be submitted on or before August 4, 2026. Comments on the information collection described in the “Paperwork Reduction Act” section of this proposed rule must be received on or before August 4, 2026. The electronic Federal Docket Management System will accept comments prior to midnight eastern time at the end of that day.

ADDRESSES:

You may submit comments on the entirety of this proposed rulemaking package, identified by DHS Docket No. USCIS-2026-0067 through the Federal eRulemaking Portal: http://www.regulations.gov. In accordance with 5 U.S.C. 553(b)(4), the summary of this rule found above may also be found at https://www.regulations.gov. Follow the website instructions for submitting comments.

Comments must be submitted in English, or an English translation must be provided. Comments that will provide the most assistance to USCIS in implementing these changes will reference a specific portion of the proposed rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change. Comments submitted in a manner other than the one listed above, including emails or letters sent to DHS or USCIS officials, will not be considered comments on the proposed rule and may not receive a response from DHS. Please note that DHS and USCIS will not accept any comments that are hand-delivered, couriered, or sent by mail. In addition, USCIS cannot accept comments contained on any form of digital media storage devices, such as CDs/DVDs and USB drives. If you cannot submit your comment by using http://www.regulations.gov, please contact the Regulatory Coordination Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, by telephone at (240) 721-3000 for alternate instructions.

FOR FURTHER INFORMATION CONTACT:

Security and Public Safety Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services (USCIS), Department of Homeland Security, 5900 Capital Gateway Drive, Camp Springs, MD 20746; telephone (240) 721-3000.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Participation II. Executive Summary A. Purpose of the Regulatory Action B. Legal Authority C. Summary of the Major Provisions of the Regulatory Action D. Summary of Costs and Benefits III. Background and Purpose A. Prior and Related Rulemaking Efforts 1. Asylum EAD Reform 2. Biometrics Rule B. Background 1. Detention, Release, and Repatriation of Aliens Ordered Removed 2. Withholding of Removal Under the INA and Regulations Implementing CAT and Deferral of Removal Under Regulations Implementing CAT 3. Parole 4. Deferred Action 5. Employment Authorization 6. Biometric Submission C. Purpose 1. Aliens With Final Orders of Removal 2. Aliens Who Have Received a Grant of Deferral of Removal Under the Regulations Implementing CAT 3. Aliens Paroled Into the United States 4. Aliens Granted Deferred Action IV. Discussion of Proposed Rule A. Discretionary Employment Authorization Generally 1. Biometrics Submission and Criminal History 2. Filing Fees 3. E-Verify 4. Economic Necessity B. Discretionary Employment Authorization for Aliens on OSUP C. Aliens Granted Deferral of Removal Under the Regulations Implementing CAT D. Discretionary Employment Authorization for Aliens Paroled Into the United States E. Discretionary Employment Authorization for Aliens Granted Deferred Action F. Automatic Termination of Employment Authorization G. Technical Edits and Edits for Clarity H. Reliance Interests of Certain Aliens With Current Employment Authorization I. Description of Any Significant Alternatives to the Proposed Rule Which Accomplish the Stated Objectives J. Severability V. Statutory and Regulatory Requirements A. Executive Orders 12866 (Regulatory Planning and Review), 13563 (Improving Regulation and Regulatory Review), and 14192 (Unleashing Prosperity Through Deregulation) 1. Summary 2. Background and Purpose of the Proposed Rule 3. Population 4. Monetized Impact Analysis 5. Costs to Employers 6. Biometrics Costs to All Other Aliens Who Apply for Employment Authorization 7. Potential Costs to the Federal Government 8. Benefits 9. Labor Market Overview B. Regulatory Flexibility Act C. Unfunded Mandates Reform Act of 1995 D. Small Business Regulatory Enforcement Fairness Act of 1996 (Congressional Review Act) E. Executive Order 13132 (Federalism) F. Executive Order 12988 (Civil Justice Reform) G. Family Assessment H. Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments) I. National Environmental Policy Act J. Paperwork Reduction Act K. Executive Order 12630 (Governmental Actions and Interference with Constitutionally Protected Property Rights) Table of Abbreviations

AEDPA Anti-Terrorism and Effective Death Penalty Act ASC Application Support Center BIA Board of Immigration Appeals BLS Bureau of Labor Statistics CAP Center for American Progress CAT Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment CBP U.S. Customs and Border Protection CEQ Council of Environmental Quality CFR Code of Federal Regulations CPI-U Consumer Price Index for All Urban Consumers DACA Deferred Action for Childhood Arrivals DHS U.S. Department of Homeland Security DOJ U.S. Department of Justice DOL U.S. Department of Labor DOS U.S. Department of State EAD Employment Authorization Document E.O. Executive Order EOIR Executive Office for Immigration Review E-Verify Employment Eligibility Verification System FARRA Foreign Affairs Reform and Restructuring Act of 1998 FBI Federal Bureau of Investigation FR Federal Register FY Fiscal Year GSA General Services Administration HR Human Resources H.R. 1 The One Big Beautiful Bill Act, Public Law 119-21, 139 Stat. 72. HSA Homeland Security Act of 2002 HHS U.S. Department of Health and Human Services ICE U.S. Immigration and Customs Enforcement IIRIRA Illegal Immigration Reform and Immigrant Responsibility Act of 1996 IJ Immigration Judge INA Immigration and Nationality Act INS Immigration and Naturalization Service IRFA Initial Regulatory Flexibility Analysis IRS Internal Revenue Service LPR Lawful Permanent Resident MOU Memorandum of Understanding NEPA National Environmental Policy Act NGO Non-governmental Organization NPRM Notice of Proposed Rulemaking OI Operating Instructions OMB Office of Management and Budget OSUP Orders of supervision PRA Paperwork Reduction Act Pub. L. Public Law RFA Regulatory Flexibility Analysis RIA Regulatory Impact Analysis SBREFA Small Business Regulatory Enforcement Fairness Act of 1996 Secretary Secretary of Homeland Security SSA Social Security Administration TPS Temporary Protected Status UMRA Unfunded Mandates Reform Act of 1995 U.N. United Nations U.S.C. United States Code USCIS U.S. Citizenship and Immigration Services I. Public Participation

The Department of Homeland Security (DHS) invites all interested parties to participate in this rulemaking by submitting written data, views, comments and arguments on all aspects of this proposed rule. DHS also invites comments that relate to the economic, environmental, or federalism effects that might result from this proposed rule. Comments must be submitted in English, or an English translation must be provided. Comments that will provide the most assistance to U.S. Citizenship and Immigration Services (USCIS) in implementing these changes will reference a specific portion of the proposed rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change. Comments submitted in a manner other than the one listed above, including emails or letters sent to DHS or USCIS officials, will not be considered comments on the proposed rule and may not receive a response from DHS.

Instructions: If you submit a comment, you must include the agency name (U.S. Citizenship and Immigration Services) and the DHS Docket No. USCIS-2026-0067 for this rulemaking. Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at http://www.regulations.gov, and will include any personal information you provide. Therefore, submitting this information makes it public. You may wish to consider limiting the amount of personal information that you provide in any voluntary public comment submission you make to DHS. DHS may withhold information provided in comments from public viewing that it determines may impact the privacy of an individual or is offensive. For additional information, please read the Privacy and Security Notice available at http://www.regulations.gov.

Docket: For access to the docket and to read background documents or comments received, go to http://www.regulations.gov, referencing DHS Docket No. USCIS-2026-0067. You may also sign up for email alerts on the online docket to be notified when comments are posted or a final rule is published.

II. Executive Summary

A. Purpose of the Regulatory Action

DHS proposes to limit and clarify eligibility for discretionary employment authorization under 8 CFR 274a.12(c)(11)(“(c)(11)”), for aliens paroled into the United States temporarily for urgent humanitarian reasons or significant public benefit, 1 and for discretionary employment authorization under 8 CFR 274a.12(c)(14)(“(c)(14)”), for aliens granted deferred action. 2 DHS also proposes to eliminate, with one narrow exception, discretionary employment authorization eligibility under 8 CFR 274a.12(c)(18)(“(c)(18)”), for aliens against whom a final order of deportation or removal exists and who are temporarily released from custody on an order of supervision. 3 Additionally, DHS proposes to add automatic termination conditions for employment authorization with triggering events. The proposed rule will also require that aliens in these categories establish their economic necessity for employment and establish they warrant a favorable exercise of discretion. DHS is also proposing to require aliens applying for renewal or subsequent requests of employment authorization in these categories be employed by or seeking employment with an employer who participates in E-Verify, the electronic employment eligibility verification program administered by USCIS. DHS also proposes to clarify that all aliens applying for employment authorization under 8 CFR 274a.12(c) must submit biometrics, that an alien's identity must be validated before issuing any employment authorization, and that, generally, situations where aliens have been arrested, 4 indicted, or convicted of any criminal act, or who have admitted to committing a violent or dangerous crime, or for whom evidence exists that the alien is a member of a gang or terrorist organization, do not warrant a favorable exercise of discretion, unless there are significant countervailing public interests, which may include the presence of the alien in the United States to assist law enforcement activity in the United States.

1 Currently, except as provided in 8 CFR 274a.12(b)(37) and (c)(34) and 8 CFR 212.19(h)(4), an alien paroled into the United States temporarily for urgent humanitarian reasons or significant public benefit pursuant to section 212(d)(5) of the Act is eligible for employment authorization under 8 CFR 274a.12(c)(11) ((c)(11) category).

2 Currently, except as provided in 8 CFR 274a.12(c)(33), an alien who has been granted deferred action, an act of administrative convenience to the government that gives some cases lower priority, is eligible for employment authorization under 8 CFR 274a.12(c)(14) ((c)(14) category) if the alien establishes an economic necessity for employment.

3 Currently, an alien against whom a final order of deportation or removal exists and who is released on an order of supervision under the authority contained in section 241(a)(3) of the Act, and who meets other eligibility criteria may be granted employment authorization under 8 CFR 274a.12(c)(18) ((c)(18) category).

4 In this proposed rule, this means arrested or charged regardless of the disposition.

Additionally, DHS is clarifying that aliens granted deferral of removal based on regulations implementing the United States' obligations under Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) are eligible to apply for discretionary employment authorization in accordance with 8 CFR 274a.12(c)(18). Employment authorization will not be automatic upon the grant of deferral of removal under CAT. Such aliens may apply for employment authorization, but USCIS retains the authority and discretion to determine their eligibility under 8 CFR

These proposed changes and clarifications are responsive to Executive Order (E.O.) 14159, “Protecting the American People Against Invasion” 5 to ensure the continued safety and security of the American people and the integrity of our immigration system. DHS seeks to ensure that any discretionary grant of employment authorization to aliens is consistent with DHS's obligations under the INA to apprehend, detain, and promptly remove from the United States any criminal aliens, aliens who are a threat to national security or public safety, and aliens who are inadmissible or deportable or otherwise ineligible for relief under the INA. DHS also seeks to ensure that its rules are aligned with the Administration's efforts to reduce illegal immigration and the incentives for aliens to try to obtain immigration benefits outside of the comprehensive scheme Congress has provided for aliens to legally immigrate to the United States. Enforcement is essential to the integrity of the immigration system. It protects U.S. national security and ensures that only those who are legally qualified and lawfully in the United States are allowed to avail themselves of any benefits privileges under the INA.

5 90 FR 8443 (Jan. 29, 2025).

Employment authorization issued under the (c)(18) category is for aliens temporarily released from U.S. Immigration and Customs Enforcement (ICE) custody on orders of supervision (OSUP), which allow aliens to remain in the United States while awaiting deportation or removal when they cannot be removed due to the refusal of all countries designated by the alien or under section 241 of the Act, 8 U.S.C. 1231, to receive the alien, or because the removal of the alien is otherwise impracticable or contrary to the public interest. When adjudicating employment authorization applications under 8 CFR 274a.12(c)(18), USCIS has historically granted the benefit to any alien with a final order of removal released on an order of supervision without conducting an individualized assessment of whether the alien cannot be removed due to the refusal of all countries designated by the alien or under section 241 of the Act to receive the alien or because removal is impracticable or contrary to the public interest. Granting employment authorization solely because the alien was released from ICE custody on an order of supervision after an order of removal without conducting an individualized assessment undermines the integrity of the immigration system as it can incentivize aliens to remain in the United States rather than complying with their removal orders, cooperating with ICE in swiftly obtaining travel documents, and departing the United States.

Furthermore, by eliminating, with one limited exception, discretionary employment authorization for an alien who has been arrested for, charged with, indicted for, or convicted of any criminal act, or who admits to committing a violent or dangerous crime, DHS hopes to deter the commission of crime and disincentivize such dangerous aliens from remaining in the United States. DHS anticipates this will be especially effective for aliens who intend to reapply for employment authorization. These aliens would not warrant a favorable exercise of discretion for employment authorization unless DHS has determined there are significant countervailing public interests, which may include assisting law enforcement activity in the United States.

The rule clarifies the requirements for discretionary grants of employment authorization under (c)(11) for aliens paroled into the United States temporarily for urgent humanitarian reasons or significant public benefit, under (c)(14) for those who have been granted deferred action, or under (c)(18) for those against whom a final order of deportation or removal exists and who are temporarily released from custody on an order of supervision. The rule will require these aliens to establish they warrant a favorable exercise of discretion. The rule also requires that aliens under these three categories establish economic necessity. In doing so, DHS promotes a consistent policy in contrast to the status quo, which currently only requires aliens who have received a grant of deferred action ((c)(14)) or those with final orders of removal ((c)(18)) to establish economic necessity for employment authorization. This proposed change will also ensure that only aliens with an economic need to work will be eligible for discretionary employment authorization in these categories, as well as minimize the potential risk of disadvantaging American workers. Aliens who do not have an economic need for employment will not be eligible for employment authorization and an employment authorization document (EAD) in these categories. Where DHS previously did not require all aliens under these categories to establish economic necessity, it will now consistently require them to do so. DHS will provide guidance on the documentation that may be used to establish such necessity in form instructions and other sub-regulatory guidance.

In addition to all the factors discussed at length above, this Administration and DHS recognize the importance of American workers as well. DHS intends for this rule to significantly restrict employment authorization that might incentivize aliens to remain in the United States after receiving a final order of removal and to strengthen protection for American workers.

Statutory provisions governing certain employment-based visas, such as H-2B temporary nonagricultural workers, mandate that such alien workers not displace qualified, available American workers who are capable of performing such services or labor, and similarly that such alien employment not adversely affect the wages and working conditions of workers in the United States. 6 DHS is in no way equating the populations of aliens discussed in this proposed regulation with temporary nonagricultural workers; rather, DHS merely notes the mandatory consideration for American workers in certain visa programs. However, DHS recognizes there is historical precedent to consider American workers when DHS determines the availability and scope of employment authorization for aliens.

6 See, e.g., INA sec. 101(a)(15)(H)(ii)(b), 8 U.S.C. 1101(a)(15)(H)(ii)(b); see also 8 CFR 214.2(h)(6)(i).

For example, in 1974, the former Immigration and Naturalization Service (INS) Commissioner Leonard F. Chapman, Jr. announced a significant change to the summer program policy for foreign students. 7 Under the new policy, foreign students seeking summer employment had to apply and obtain permission from INS. In changing the long-standing student employment policy, INS recognized the foreign policy benefits for young aliens studying in the United States but determined that the protection of job opportunities for Americans should be the ultimate consideration. 8 The following year, INS General Counsel Sam Bernsen gave a presentation further detailing INS' decision. He recognized that F-1 student work was not expressly banned by statute but was concerned about ensuring that “a United States citizen or a United States lawful permanent resident will not be fired from a campus job to provide employment for a nonimmigrant 9 Continuing, Bernsen stated the “INS had to weigh the adverse effect on foreign relations against the adverse effect on the labor market.” 10 This ultimately meant students who wanted employment had to apply to the INS and establish eligibility under the prescribed rules. The Government Accountability Office (GAO) in a 1983 report estimated that there were approximately 154,580 F-1 students in 1974. 11 If all 154,580 F-1 students displaced American workers, it still falls far short of the current displacement risk based on more recent employment authorization applications. In FY 2024, USCIS received 33,024 (c)(18) Order of Supervision EAD initial and renewal applications; 792,130 (c)(11) Parole EAD initial and renewal applications; and 153,154 (c)(14) Deferred Action EAD initial and renewal applications, for a total of 978,308 discretionary EAD applications in the categories impacted by this proposed rule. 12 If the former INS was justified in terminating a form of work authorization in order to prevent the possible displacement of more than 150,000 American workers on an annual basis, it follows that DHS cannot discount the potential impact on up to 978,308 American workers annually when reviewing discretionary EAD categories.

7 See American Council for Nationalities Service Interpreter Releases, Vol. 51, No. 16 “Foreign Student Work Policy Changed” (May 14, 1974).

8 Id.

9 See Bernsen, Sam, General Counsel, INS, DOJ, “Leave to Labor” as published in American Counsel for Nationalities Service Interpreter Releases, Vol. 52, No 35 (Sept. 2, 1975).

10 Id.

11 See GAO, Controls Over Foreign Students in U.S. Postsecondary Institutions Are Still Ineffective, https://www.gao.gov/products/hrd-83-27 (Mar. 10, 1983). Department of State (DOS) data on F-1 student visa issuances only goes back to 1987. See https://travel.state.gov/content/dam/visas/Statistics/Non-Immigrant-Statistics/NIVClassIssuedDetailed/NIVClassIssued-DetailedFY1987-1991.pdf. Accordingly, official data for 1974 F-1 visa admissions is not available from DOS.

12 For more information, please see Tables V.4, V.11, and V.16.

Additionally, E.O. 14159 specifically provides that:

Enforcing our Nation's immigration laws is critically important to the national security and public safety of the United States. The American people deserve a Federal Government that puts their interests first and a Federal Government that understands its sacred obligation to prioritize the safety, security, and financial and economic well-being of Americans. 13

13 See E.O. 14159, Protecting the American People Against Invasion, 90 FR 8443 (Jan. 29, 2025).

This rule will also require the following groups of aliens who are seeking a renewal of employment authorization be employed by, or seeking employment with, a U.S. employer who is a participant in good standing in the E-Verify program: aliens who were (1) paroled into the United States temporarily for urgent humanitarian reasons or significant public benefit applying under (c)(11); (2) who have been granted deferred action applying under (c)(14); or (3) against whom a final order of deportation or removal exists and who are temporarily released from custody on an order of supervision applying under (c)(18). This requirement will protect American workers against potential displacement and any disadvantages in the labor market and ensure that U.S. employers who hire these aliens are complying with our immigration laws and not employing unauthorized workers.

Finally, this rule is consistent with the Administration's broad objective to protect and strengthen protections for American workers. Generally, by limiting employment authorization to those aliens who establish an economic necessity for employment and warrant a favorable exercise of discretion by USCIS, this rule will remove barriers and open pathways for American workers to participate in positions that may otherwise be filled by aliens. Further, the rule limits incentives to remain in the United States for those aliens with final orders of removal, thereby expanding the labor pool for American workers. Overall, this rule represents one piece of a broader initiative 14 within the federal government to fulfill the President's domestic policy goal of developing American workers for jobs of the future and a revitalized economy. DHS proposes to apply changes made by this rule only to initial and renewal employment authorization applications filed on or after the effective date of the final rule.

14 For example, as noted elsewhere in this rule, USCIS is engaged in concurrent rulemaking on other employment authorization in the asylum context.

B. Legal Authority

The Secretary of Homeland Security's (Secretary) authority for the regulatory amendments made in this proposed rule is found in various provisions of the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and the Homeland Security Act of 2002 (HSA), Public Law 107-296, 116 Stat. 2135 (codified in part at 6 U.S.C. 101 et seq. ). General authority for issuing this proposed rule is found in section 103(a) of the INA, 8 U.S.C. 1103(a), which authorizes the Secretary to administer and enforce the immigration and naturalization laws and establish such regulations as the Secretary deems necessary for carrying out such authority, as well as section 122 of the HSA, 6 U.S.C. 112, which vests all of the functions of DHS in the Secretary and authorizes the Secretary to issue regulations. 15 This includes the authority to issue regulations authorizing categories of aliens to be employed in the United States and to collect from or require the submission of biometrics by aliens requesting immigration benefits, such as employment authorization. Additional authority for this proposed rule is found in:

15 Although several provisions of the INA discussed in this proposed rule refer exclusively to the “Attorney General,” such provisions are now to be read as referring to the Secretary by operation of the HSA. See 6 U.S.C. 202(3), 251, 271(b), 542 note, and 557; 8 U.S.C. 1103(a)(1) and (g), 1551 note; Nielsen v. Preap, 586 U.S. 392, 397 n.2 (2019).

• Section 208, 8 U.S.C. 1158, which governs the consideration of asylum applications and allows, inter alia, discretion to grant asylum applicants employment authorization under specified conditions.

• Section 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A), which authorizes the Secretary to prescribe conditions on parole.

• Section 241 of the INA, 8 U.S.C. 1231, which governs the detention, release, employment authorization, and removal of aliens after they have received an administratively final order of removal;

• Section 274A(h)(3)(B) of the INA, 8 U.S.C. 1324a(h)(3)(B), which recognizes the Secretary's authority to extend employment authorization to aliens in the United States; 16

16 Courts have acknowledged that Congress delegated authority to DHS to grant or extend employment authorization to certain classes of aliens. See, e.g., Wash. All. of Tech. Workers v. DHS, 50 F.4th 164, 191-92 (D.C. Cir. 2022) (“What matters is that section 1324a(h)(3) expressly acknowledges that employment authorization need not be specifically conferred by statute; it can also be granted by regulation.”). DHS is exercising this discretionary authority consistent with all applicable authorities, including the referenced authorities in the HSA, and sections 103, 208, 212(d)(5)(A), 241, and 274A(h)(3) of the INA, 8 U.S.C. 1103, 1158, 1182(d)(5)(A), 1231, and 1324a(h)(3), as well as the Administrative Procedure Act at 5 U.S.C. 553. See Loper Bright Enters. v. Raimondo, 603 U.S. 369, 395 (2024) (“In a case involving an agency, of course, the statute's meaning may well be that the agency is authorized to exercise a degree of discretion. Congress has often enacted such statutes. For example, some statutes `expressly delegate' to an agency the authority to give meaning to a particular statutory term. Others empower an agency to prescribe rules to `fill up the details' of a statutory scheme, or to regulate subject to the limits imposed by a term or phrase that leaves agencies with flexibility,' such as `appropriate' or `reasonable.' ”) (citations omitted).

• Sections 401-405 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Public Law 104-208, 110 Stat. 3009-

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

• Section 451(a)(3) of the HSA, 6 U.S.C. 271(a)(3), which confers authority on the USCIS Director to establish “policies for performing [immigration adjudication] functions”;

• Section 103 of the INA, 8 U.S.C. 1103; section 287(b) of the INA, 8 U.S.C. 1357(b); and sections 103.2(b)(9) and 103.16 of chapter 8 of the CFR, which provides for and governs the collection, submission, and use of biometrics by DHS; and

• The One Big Beautiful Bill Act (H.R. 1), Public Law 119-21, 139 Stat. 72 (codified in relevant part at 8 U.S.C. 1801-1815), which imposes restrictions on validity periods of employment authorization in relation to certain immigration benefits, as well as certain fees.

C. Summary of the Major Provisions of the Regulatory Action

DHS is proposing to amend its regulations governing discretionary employment authorization for certain aliens. The proposed rule would include the following provisions to clarify and limit when certain aliens are eligible for discretionary employment authorization and how USCIS will weigh certain discretionary factors when adjudicating a discretionary grant of employment authorization:

• Employment Authorization for Aliens Granted Deferred Action or Paroled into the United States. DHS proposes to revise eligibility for discretionary employment authorization under 8 CFR 274a.12(c)(11) for aliens who have been paroled into the United States based on urgent humanitarian reasons or significant public benefit and under 8 CFR 274a.12(c)(14) for aliens who have been granted deferred action by confirming such a grant requires the alien establish they warrant a favorable exercise of discretion, by requiring aliens applying for renewal of employment authorization be employed by or seeking employment with a U.S. employer in good standing in E-Verify, and by requiring aliens who have been paroled into the United States based on urgent humanitarian reasons or significant public benefit to establish an economic necessity for employment. The specific changes proposed to 8 CFR 274a.12(c)(14) do not apply to employment authorization based on a grant of DACA, which is authorized under 8 CFR 274a.12(c)(33), or to employment authorization based on a grant of deferred action to an applicant for T nonimmigrant status, and eligible family members, who have pending, bona fide applications, and who warrant a favorable exercise of discretion, authorized under 8 CFR 274a.12(c)(40), and not 8 CFR 274a.12(c)(14); however, the proposed changes described below relating to criminal aliens and biometrics, which are generally applicable to all discretionary employment authorization under 8 CFR 274a.12(c) unless specifically exempted, do apply to employment authorization based on a grant of DACA or a bona fide T application.

• Employment Authorization for Aliens Temporarily Released on OSUP. DHS proposes to limit eligibility for discretionary employment authorization under 8 CFR 274a.12(c)(18) for aliens who have final orders of removal and are temporarily released from custody on OSUP to aliens for whom DHS has determined that removal is impracticable because all countries from which DHS requested travel documents have failed to issue such documents. DHS also proposes to require aliens applying for renewal of employment authorization in this category to be employed by or seeking employment with a U.S. employer in good standing in E-Verify.

• Bar discretionary employment authorization for criminal aliens. DHS proposes that unless DHS has determined that there are significant countervailing public interests, which may include the presence of the alien in the United States to assist law enforcement activity in the United States, it generally will not favorably exercise its discretion to grant employment authorization, when:

○ An alien has been arrested for, charged with (without disposition), indicted for, or convicted of, any criminal act; or

○ An alien admits to committing a violent or dangerous crime, even if the alien has never been formally arrested, charged, indicted or convicted; or

○ There is evidence of the alien's membership in a gang or terrorist organization.

While an alien's successful participation in state or federal programs, such as pretrial diversion programs, may not constitute a conviction for the purposes of the INA, DHS generally will not favorably exercise its discretion to grant employment authorization for aliens who enter into agreements that impose some form of punishment, penalty, or a restraint on liberty. This includes agreements or programs where an alien's criminal record has been sealed or expunged. In these cases, the alien's initial criminal arrest would be the prevailing factor.

• Require biometrics submission. DHS proposes to require aliens seeking discretionary employment authorization to submit biometrics. USCIS will submit an alien's biometrics to the Federal Bureau of Investigation (FBI) for a criminal history check and use an alien's biometrics to facilitate identity verification and production of the EAD.

• Validity periods. DHS intends to shorten the validity period of the discretionary EADs ( e.g., not more than one year) impacted by the proposed rule and place the burden on the alien to ensure ongoing eligibility for those applying for EADs under these categories. On July 4, 2025, the President signed into law the One Big Beautiful Bill Act (H.R. 1), Public Law 119-21, 139 Stat. 72. It placed a limit on the validity of employment authorization for any alien paroled into the United States to one year or the duration of the alien's parole, whichever is shorter. 17 H.R.1 also established statutory validity periods for Temporary Protected Status (TPS)-based employment authorization, stating TPS-related employment authorization may only be automatically extended for up to 1 year or the duration of TPS, whichever is shorter, for initial and renewal applications for employment authorization pending or filed on or after July 22, 2025. 18 Considering these changes, DHS is updating the validity period for EADs issued for deferred action and OSUP-based employment authorization categories to align with the others imposed in H.R. 1. In addition to ensuring continuous eligibility and consistent treatment, this

17 See Section 100003(b)(1) of Part I, Title X of Public Law 119-21 (July 4, 2025), 8 U.S.C. 1803(b)(1) (defining the validity period for initial employment authorization of parolees to a period of 1 year or for the duration of the alien's parole, whichever is shorter.); see also Section 100010(a) of Part I, Title X of Public Law 119-21 (July 4, 2025), 8 U.S.C. 1809(a) (defining the validity period for renewal employment authorization of parolees to a period of 1 year or for the duration of the alien's parole, whichever is shorter).

18 See Section 100003(c)(1) of Part I, Title X of Public Law 119-21 (July 4, 2025), 8 U.S.C. 1803(c)(1) (defining the validity period for initial employment authorization of aliens granted TPS to a period of 1 year or for the duration of the TPS designation, whichever is shorter.); see also Section 100012(a) of Part I, Title X of Public Law 119-21 (July 4, 2025), 8 U.S.C. 1811(a) (defining the validity period for renewal employment authorization of those granted TPS to a period of 1 year or for the duration of the TPS designation, whichever is shorter).

• Automatic Termination of Employment Authorization. DHS is proposing to expand the reasons for automatic termination under 8 CFR 274a.14(a)(1), to include two additional reasons:

○ When an alien has an administratively final order of removal under any of the removal statutes ( e.g., INA 217, 235, 238, 240); and

○ When the underlying basis for employment authorization is terminated or denied. This can include DHS's termination of status or denial of the application that was the basis of the employment authorization ( e.g., parole, deferred action).

Notice of the termination of the underlying status or benefit, denial of a pending application, or having a final order of removal will result in the automatic termination of any alien's employment authorization granted under § 274a.12(c).

D. Summary of Costs and Benefits

DHS estimates that this proposed rule would result in a reduction in the number of aliens with granted deferred action, aliens granted parole, and aliens with final orders of removal who are eligible for employment authorization. This could result in lost earnings for aliens who are no longer eligible for employment authorization, while also ensuring and strengthening protections of American workers. The lost earnings could result in a transfer of costs from the alien to their support network, including family members, community groups, non-profits or third-party organizations that provide for the alien, and any dependents. In addition, DHS estimates that the proposed rule would increase filing burdens for those aliens who remain eligible for employment authorization, while ensuring economic necessity for employment and permitting DHS to verify criminal history and biometrically verify an alien's identity before issuing employment authorization, and demonstrating to the satisfaction of USCIS that the alien warrants a favorable exercise of discretion. U.S. businesses that currently employ alien workers who would no longer be eligible to renew their employment authorization under this proposed rule could incur new costs due to employee turnover or compliance with the proposed E-Verify requirement that would ensure aliens' authorization to work. Finally, the proposed rule may result in a loss of tax revenue.

Under the proposed rule, DHS estimates and quantifies six types of economic impacts, including: (1) potential lost earnings of alien workers who may no longer be eligible for employment authorization; (2) increased time burden for aliens to submit forms; (3) added time and costs for aliens to submit biometrics; 19 (4) labor turnover costs that employers of alien workers could incur when EADs expire, are revoked, or are not renewed; (5) costs to employers to enroll in and maintain an E-Verify account as a participant in good standing to retain alien workers applying for renewal EADs; and (6) potential employment tax losses to the Federal government.

19 As discussed later in this preamble, the proposed changes under 8 CFR 274a.13(a) will require all aliens applying for employment authorization under § 274a.12(c) to submit biometrics at an ASC. DHS is concurrently proposing to amend its regulations concerning the submissions and use of biometrics by an NPRM. The overlapping policy objectives between the biometrics rule and this proposed rule were considered when developing the populations and costs associated with submitting biometrics under this proposed rule. As such, this rule will only consider the impacts of biometrics submission for those aliens that apply for employment authorization under § 274a.12(c).

DHS estimates that some aliens would be ineligible for discretionary EADs due to the proposed rule. However, DHS cannot estimate this population with precision because of data constraints and, therefore, relies on a range with an upper and lower bound. The estimated 10-year undiscounted, direct costs of this proposed rule would range from about $9.1 billion to $27.9 billion (Table V.36), which includes costs associated with biometrics and added time burdens for relevant filing forms as well as estimated costs should employers not be able to find replacement labor for category (c)(11), (c)(14), and (c)(18) aliens who would become ineligible for employment authorization under this rule. The estimated 10-year costs of the proposed rule annualized at a 3 percent discount rate would range from $920.5 million to $2.8 billion, and at a 7 percent discount rate would range from $937.1 million to $2.9 billion. DHS estimates $2.9 billion (10-year undiscounted) as the maximum transfer of employment taxes (namely Medicare and Social Security) from employers and employees to the Federal Government ($298.2 million annualized at 3 percent and $304.6 million annualized at 7 percent).

The potential benefits of the proposed rule would be qualitative. First, U.S. citizen or lawful permanent resident workers on the whole would be more likely to obtain jobs currently held by category (c)(11), (c)(14), and (c)(18) alien workers since the proposed rule would reduce employment authorization eligibility for these populations of aliens. Second, the proposed rule may reduce the incentive for (c)(18) aliens to remain in the United States after receiving a final order of removal, which could reduce the amount of government resources expended on enforcing final orders of removal for such aliens as well as monitoring and tracking aliens temporarily released on OSUP. According to a May 2025 DHS announcement, 20 the average cost to arrest, detain, and remove an illegal alien is $17,121. 21

20 “DHS Announces Historic Travel Assistance and Stipend for Voluntary Self-Deportation” (release date May 5, 2025), https://www.dhs.gov/news/2025/05/05/dhs-announces-historic-travel-assistance-and-stipend-voluntary-self-deportation, (last viewed Nov. 26, 2025).

21 It is important to note that costs can vary significantly based on individual circumstances, such as the method of removal, the alien's location, detention costs, transportation expenses, legal proceedings, and other logistical considerations.

Additional unquantifiable benefits also include enabling DHS to determine an economic necessity for employment, biometrically verifying an alien's identity before issuing any employment authorization under § 274a.12(c), vetting an alien's biometrics against government databases for criminal activity, and ensuring that aliens who renew their employment authorization have their employment authorization verified by their employer, thereby increasing the integrity of the immigration system.

Table II.1 shows the summary of impacts of the proposed regulatory changes and the associated estimated costs and benefits. 22

22 For a complete summary of regulatory changes and additional guidance in this proposed rule, please see Section IV, “Discussion of Proposed Rule.”

BILLING CODE 9111-97-P EP05JN26.000

EP05JN26.001

EP05JN26.002

EP05JN26.003

EP05JN26.004

EP05JN26.005

EP05JN26.006

The impacts 23 of reducing the number of aliens with final orders of removal, aliens granted deferred action, and aliens granted parole who are eligible for employment authorization include both potential distributional impacts (transfers) and costs. USCIS uses the lost compensation to aliens who are no longer eligible for employment authorization as a measure of the impact of this change—either as distributional impacts (transfers) from these aliens to others or as a proxy for businesses' cost for lost productivity. If all companies can easily find reasonable labor substitutes for the positions the aliens would have otherwise filled, DHS estimates a maximum of $2.8 billion (annualized at a 3 percent discount rate) would be transferred from these workers to others in the labor force (or induced back into the labor force) or $2.9 billion (annualized at a 7 percent discount rate) (Table II.2(A)). 24 Under this scenario, there would be no Federal employment tax losses. 25 Conversely, if companies are unable to find reasonable labor substitutes for the positions the aliens would have filled, then a maximum of $2.8 billion (annualized at a 3 percent discount rate) or $2.9 billion (annualized at a 7 percent discount rate) is the estimated monetized cost in lost productivity, and $0 is the estimated monetized transfers from these aliens to other workers. In addition, under this scenario where jobs would go unfilled, there would be a loss of employment taxes to the Federal Government. USCIS estimates $298.2 million (annualized at a 3 percent discount rate) or $304.6 million (annualized at a 7 percent discount rate) as the maximum reduction in transfers of employment taxes from companies and employees to the Federal Government.

23 All other categories include: (c)(1)-(10), (c)(12), (c)(16), (c)(17), (c)(19)-(22), (c)(24)-(26), (c)(33)-(36), and (c)(40).

24 We note that DHS does not know the portion of overall impacts of this rule that are transfers or costs and assume that if companies can find replacement labor for the positions the (c)(11), (c)(14), or (c)(18) alien worker would have filled, removing employment authorization from these aliens would result in primarily distributional effects in the form of transfers from aliens to others that are currently in the U.S. labor force (or workers induced to return to the labor market). Please see Section V.A.5. “Costs to Employers” for more information.

25 This scenario assumes that all the labor substitutes for the positions the aliens would have filled were previously unemployed. If a labor substitute was previously employed, then there could be a potential tax loss stemming from the position that was vacated.

DHS believes the two scenarios described above represent the uncertainty in how employers will be able to respond given labor market conditions. DHS estimated endpoints for the range of monetized impacts resulting from the provisions that affect employment eligibility for aliens with final orders of removal, aliens granted deferred action, and aliens granted parole. Effects of this rulemaking would depend in part on the interaction of a 26 DHS welcomes public comment on the estimates presented in these scenarios and on the validity of the assumptions on affected jobs being backfilled.

26 See Edo, A. (2019). The Impact of Immigration on the Labor Market. Journal of Economic Surveys, Vol. 33(3), pp. 922-948.

There are other costs of the rule, including E-Verify, biometrics, labor turnover, and additional form burdens. These other costs exist under both scenarios described above, and thus $4.2 million is the minimum cost of the rule (annualized at a 3 percent discount rate) or $4.4 million (annualized at a 7 percent discount rate).

The range of impacts described by the scenarios above, plus the consideration of the other costs, are summarized in Table II.2. The primary estimate shown in Table II.2 is the median point between the minimum estimate and the maximum estimate for each scenario. 27

27 Example calculations at 7 percent: The median for compensation (transfer) of $0 and $2,877,152,531 = $1,443,576,266. The median for taxes (transfer) of $0 and $304,644,371 = $152,322,185. The median for biometrics (cost) of $3,440,598 and $8,425,002 = $5,932,800. The median for forms (cost) of $934,778 and $2,622,217 = $1,778,497. The median for lost productivity (cost) of $0 and $2,887,152,531 = $1,443,576,266. The median for total costs of $4,375,376 and $2,898,199,750 = $1,451,287,563.

EP05JN26.007

EP05JN26.008

In addition, Table II.3 presents the prepared accounting statement, as required by OMB Circular A-4, showing the costs associated with this proposed regulation. 28 Note that under costs, the primary estimates provided in the accounting statement are the calculated midpoint based on the minimum cost from the scenario that all aliens are replaced with other workers and the maximum cost from the scenario that no aliens are replaced with other workers (scenarios presented in Tables II.2(A) and (B)).

28 OMB, “Circular A-4” (Sept. 17, 2003).

EP05JN26.009

EP05JN26.010

BILLING CODE 9111-97-C III. Background and Purpose

A. Prior and Related Rulemaking Efforts

On November 19, 2020, DHS published a notice of proposed rulemaking (NPRM) in the Federal Register , Employment Authorization for Certain Classes of Aliens with Final Orders of Removal (OSUP NPRM). 85 FR 74196. It proposed to eliminate eligibility for discretionary employment authorization for aliens who have final orders of removal and are temporarily released from custody on an order of supervision with one narrow exception. In general, the basis for the OSUP NPRM stemmed from two executive orders issued by President Trump, E.O. 13768 (Enhancing Public Safety in the Interior of the United States) and E.O. 13788 (Buy American and Hire American). 29

29 E.O. 13768, Enhancing Public Safety in the Interior of the United States, 82 FR 8799 (Jan. 30, 2017); E.O. 13788, Buy American and Hire American, 82 FR 18837 (Apr. 21, 2017).

USCIS provided a 30-day comment period to receive public comments on the proposed rule, which ended December 21, 2020. DHS received a total of 306 comments on the OSUP NPRM.

On January 20, 2021, President Biden issued E.O. 13993 (Revision of Civil Immigration Enforcement Policies and Priorities), which revoked E.O. 13768. 30 Then, on January 25, 2021, President Biden issued E.O. 14005 (Ensuring the Future Is Made in All of America by All of America's Workers), which revoked E.O. 13788. 31 E.O.s 13993 and 14005 directed agencies to review, revise, or rescind any agency actions or guidance inconsistent with the executive orders.

30 E.O. 13993, Revision of Civil Immigration Enforcement Policies and Priorities, 86 FR 7051 (Jan. 25, 2021).

31 E.O. 14005, Ensuring the Future Is Made in All of America by All of America's Workers, 86 FR 7475 (Jan. 28, 2021).

After reviewing the OSUP NPRM and the public comments in light of E.O.s 13993 and 14005, DHS withdrew the OSUP NPRM on May 10, 2021. Employment Authorization for Certain Classes of Aliens with Final Orders of Removal; Withdrawal, 86 FR 24751. Therefore, an OSUP final rule was never published. Many of the proposed provisions in this rule closely follow

Concurrent with this rule, DHS is engaging in multiple rulemaking actions that are in various stages of development. DHS has considered and analyzed each of these other rules for peripheral, overlapping, or interrelated effects on this rule and has incorporated their effects, if any, into the supporting documentation, policies, and regulatory text for this proposed rule.

1. Asylum EAD Reform

DHS recently published a proposed rule (“Asylum EAD Reform Rule”) addressing employment authorization for aliens with pending applications for asylum under 8 CFR 274a.12(c)(8) and 8 CFR 208.7 (colloquially referred to as a “(c)(8) EAD”).

In the proposed Asylum EAD Reform rule, 91 FR 8616, DHS seeks to amend 8 CFR 274a.13(a)(1) so that USCIS would have discretion to grant applications for employment authorization filed by aliens applying for asylum pursuant to 8 CFR 274a.12(c)(8) in keeping with its discretionary statutory authority under section 208(d)(2) of the INA, 8 U.S.C. 1158(d)(2). As asylum is a discretionary benefit, it follows that USCIS should similarly grant work authorization associated with a pending asylum application as a matter of discretion. DHS cannot continue to provide employment authorization to asylum applicants with virtually no eligibility criteria and nearly limitless renewal opportunities to a population of aliens where many of the claims for relief are ultimately unsuccessful. In fiscal years 2023, 2024, and 2025 (year to date), in roughly 18,000 of the approximately 33,500 asylum cases completed by USCIS, over 50% resulted in a denial or referral to Immigration Court. 32 Judges in the Department of Justice, Executive Office for Immigration Review's (EOIR) immigration courts similarly granted about 50% of the asylum applications adjudicated on the merits in fiscal years 2023 and 2024 and only about 25% in fiscal year 2025 (through the third quarter). 33

32 See, e.g., Office of Homeland Security Statistics, DHS, “Asylees: 2023” (Oct. 2024), https://ohss.dhs.gov/sites/default/files/2024-10/2024_1002_ohss_asylees_fy2023.pdf. Note: This figure does not include cases associated with the Operation Allies Welcome (OAW) program. This program, established by the previous administration, resulted in disproportionately high grant rates for OAW cases. These cases were excluded to give a more accurate overview of the previous years' figures, as the OAW cases' priority and volume would have impacted the average if they had been included.

33 See EOIR, Asylum Decisions (July 31, 2025) (comparing asylum grants versus the total of asylum grants and denials), https://www.justice.gov/eoir/media/1344851/dl?inline.

The purpose of the proposed Asylum EAD Reform Rule is to reform, improve, and streamline the asylum EAD process, so that those with bona fide asylum claims can be prioritized and extended protection. Thus, that proposed rule would impact the process for issuance of EADs for aliens with a pending asylum application under 8 CFR 274a.12(c)(8), the processing timeframe for (c)(8) EAD applications, the waiting period to apply for a (c)(8) EAD, the time in which a (c)(8) EAD is adjudicated, (c)(8) EAD validity period, and eligibility requirements for (c)(8) EADs. The Asylum EAD Reform Rule would require changes to existing regulatory text and the creation of new regulatory text.

DHS considered the possible combined effects of the Asylum EAD Reform Rule and this proposed rule. Both this rule and the Asylum EAD Reform Rule emphasize the discretionary nature of employment authorization for the pertinent populations and the proposed discretionary factors and clarified eligibility requirements included in this rule and the Asylum EAD Reform Rule generally overlap. For example, both the Discretionary EAD Rule and Asylum EAD Reform Rule propose to exclude certain criminal aliens from employment authorization eligibility. In the Asylum EAD Reform Rule, DHS is proposing to exclude (c)(8) EAD eligibility for any alien who has been convicted of an aggravated felony as described in section 101(a)(43) of the INA, 8 U.S.C. 1101(a)(43), any alien who has been convicted of a particularly serious crime, any alien for whom there are serious reasons to believe that he or she committed a serious non-political crime outside the United States, and any alien who fails to establish that he or she is not subject to a mandatory denial of asylum due to any regulatory criminal grounds under 8 CFR 208.13(c).

Although this proposed rule intersects with the Asylum EAD Reform Rule, DHS is using current regulatory text as the basis for changes in both rules. This is because any changes proposed by the Asylum EAD Reform Rule at this point in the process are just that—proposed. Therefore, DHS acknowledges that the regulatory text for either final rule may differ from the exact provisions in the relevant proposed rule in order to align the text with any updated regulations as of the time of publication. For example, the Discretionary EAD Rule amends 8 CFR 274a.12(c) to outline the EAD categories that are currently non-discretionary, which includes asylum EADs under (c)(8). However, this provision may require edits at the final rule stage, to accurately align both the Discretionary EAD and Asylum EAD rules. DHS notes that while the proposed Discretionary EAD Rule includes changes that relate to all employment authorization under 8 CFR 274a.12(c), the Asylum EAD Reform Rule will address all (c)(8)-specific proposed changes.

2. Biometrics Rule

DHS is also concurrently proposing to amend its regulations concerning the use and submission of biometrics in the administration and enforcement of immigration and naturalization laws and the adjudication of any immigration application, petition, or benefit or any other related request or collection of information (“Biometrics Rule”). 34 The Biometrics Rule proposes to require the submission of biometrics by any individual, regardless of age, filing or associated 35 with an immigration benefit request or other request or collection of information, unless exempted. This incorporates any applicant, petitioner, sponsor, supporter, derivative, dependent, or beneficiary, including U.S. citizens, U.S. nationals, and lawful permanent residents. It will define “biometrics” and expand modalities authorized for collection by DHS. Further, the proposed rule will codify USCIS's ability to reuse biometrics rather than requiring applicants to submit new biometrics in all cases but permit the reuse of biometrics only after completion of a biometric-based identity verification. Finally, it will expand biometrics collection authority upon alien arrest; establish an “extraordinary circumstances” standard to excuse a failure to appear at a biometric services appointment; modify how VAWA self-petitioners and T nonimmigrant status applicants demonstrate good moral

34 Collection and Use of Biometrics by U.S. Citizenship and Immigration Services, 90 FR49062 (Nov. 3, 2025).

35 By “associated,” DHS means a person with substantial involvement or participation in the immigration benefit request or other request or collection of information, such as a named derivative, beneficiary, petitioner's signatory, sponsor, or co-applicant. The terms “file,” “submit,” and “associated with” or variations thereof, as used throughout this rule, do not relate to attorneys and accredited representatives, although attorneys and accredited representatives may file or submit a request on behalf of a client.

The purpose of the Biometrics Rule is to standardize the Department's collection of biometrics and provide notice to those populations that will be subject to biometrics requirements. As explained more in-depth in the Biometrics Rule, using biometrics for identity verification 36 and case management will assist DHS's efforts to combat trafficking, confirm the results of biographical criminal history checks, and deter fraud.

36 See DHS, Biometrics, https://www.dhs.gov/biometrics (last updated Jan. 24, 2025).

DHS welcomes comments on the combined impact of this proposed rule with any intervening legislation, related rulemakings, and policy changes that could either overlap or coincide with this rulemaking.

B. Background

1. Detention, Release, and Repatriation of Aliens Ordered Removed

Section 241 of the INA, 8 U.S.C. 1231, governs the detention, release, and removal of aliens subject to final orders of removal. DHS generally has 90 days after the date a removal order becomes administratively final to remove the alien from the United States. 37 This 90-day removal period can be extended if the alien fails or refuses to make timely application in good faith for travel or other documents necessary for the alien's departure or conspires or acts to prevent removal. 38 Under section 241(a)(2) of the INA, 8 U.S.C. 1231(a)(2), DHS “shall detain” an alien during the removal period and is specifically prohibited from releasing an alien during the removal period who has been found inadmissible under sections 212(a)(2) or (a)(3)(B) of the INA, 8 U.S.C. 1182(a)(2) or (a)(3)(B), or deportable under sections 237(a)(2) or (a)(4)(B) of the INA, 8 U.S.C. 1227(a)(2) or (a)(4)(B) (criminal, security-related, and terrorism grounds).

37 INA sec. 241(a)(1)(A) and (B)(i), 8 U.S.C. 1231(a)(1)(A) and (B)(i).

38 INA sec. 241(a)(1)(C), 8 U.S.C. 1231(a)(1)(C).

In certain instances, DHS is not able to remove aliens within the 90-day removal period. In such cases, DHS must comply with the U.S. Supreme Court's decision in Zadvydas v. Davis. 39 In Zadvydas, the Supreme Court held that an alien with a final order of removal cannot be kept in detention (unless special circumstances exist) 40 once it has been determined that there is not a “significant likelihood of removal in the reasonably foreseeable future.” 41 The Court established 6 months as the “presumptively reasonable period of detention.” 42 After the 6-month period, once the alien provides good reason to believe there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with sufficient evidence to rebut that showing. 43 In the event DHS determines that removal is not likely to occur in the reasonably foreseeable future, the alien must generally be temporarily released on an order of supervision. 44 During this period of release, the alien is required to continue to make efforts (or assist in efforts) towards his or her removal while DHS continues to pursue the alien's removal. 45

39 533 U.S. 678 (2001).

40 Under 8 CFR 241.14, aliens with “special circumstances” are those: (1) that have a highly contagious disease that threatens public safety; (2) whose release would have serious adverse foreign policy implications; (3) who present a significant threat to national security or significant risk of terrorism; or (4) who are especially dangerous.

41 Zadvydas, 533 U.S. at 701.

42 Id.

43 Id.; see also 8 CFR 241.13(d).

44 INA 241(a)(3), 8 U.S.C. 1231(a)(3); see also 8 CFR 241.5. Aliens subject to an expedited removal order, however, are not subject to release on an order of supervision. INA sec. 235(b)(1)(B)(iii)(IV), 8 U.S.C. 1225(b)(1)(B)(iii)(IV) (an alien subject to expedited removal under section 235 “shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed”).

45 See 8 CFR 241.5(a).

If an alien is temporarily released on an order of supervision, the order of supervision will contain conditions for release, including requiring the alien to appear periodically before an immigration officer and comply with the conditions prescribed in the order of supervision. 46 If an alien fails to comply with the conditions of release as specified in the order of supervision, DHS can take the alien back into custody and detain the alien until he or she is removed. Aliens who willfully fail to comply with an order of supervision can also be criminally prosecuted under section 243(b) of the INA, 8 U.S.C. 1253(b).

46 INA sec. 241(a)(3), 8 U.S.C 1231(a)(3); 8 CFR 241.5(a). DHS may also require an alien temporarily released on an order of supervision to post a bond of a sufficient amount to ensure that the alien complies with the terms for release, including surrendering him- or herself to DHS custody for removal. 8 CFR 241.5(b).

Once an alien has been issued a final order of removal, ICE is responsible for effectuating the alien's removal from the United States pursuant to section 241 of the INA, 8 U.S.C. 1231, and 8 CFR part 241. Generally, a travel document must be obtained from a foreign government that will allow the alien to depart the United States and be repatriated either to the alien's country of birth, citizenship, nationality, or last habitual residence or to an alternate country that has agreed to accept the alien. Based on 2019 removal data, it takes DHS an average of 187.19 days, roughly 6 months, to obtain travel documents and remove an alien from the United States. 47 As this average has declined in recent years, the population of aliens that will be released on OSUP will likely decrease. 48

47 This is the most recent publicly available data. Furthermore, even though the average time to obtain travel documents across all countries was 187.19 days, the process for negotiating with foreign governments to obtain travel documents is dynamic. While there may be a period of inactivity by a particular foreign government to cooperate with issuing travel documents for a specific alien, a policy shift can also occur quickly and result in prompt repatriation. See Office of Inspector General, “ICE Faces Barriers in Timely Repatriation of Detained Aliens” (Mar. 11, 2019), https://www.oig.dhs.gov/sites/default/files/assets/2019-03/OIG-19-28-Mar19.pdf.

48 Per internal DHS data and analysis.

However, some countries refuse or unreasonably delay the issuance of the necessary travel documents to aliens who have been issued a final order of removal. Countries that unreasonably delay accepting the repatriation of their citizens or nationals impede DHS's ability to remove aliens in a timely manner and interfere with the United States' sovereign interest in enforcing its immigration laws. Under section 243(d) of the INA, 8 U.S.C. 1253(d), the Secretary has the authority to notify the Secretary of State that a specific country is refusing or unreasonably delaying acceptance of its nationals. Upon such notification from the Secretary, the Secretary of State must order consular officers in that country to discontinue issuing immigrant visas, nonimmigrant visas, or both to citizens and nationals of that country. 49 While DHS and the U.S. Department of State (DOS) work through various diplomatic channels and avenues to get such countries to comply, and most countries do comply, there are countries that refuse to assist in the repatriation of their citizens and nationals, and as a result, the United States has imposed visa sanctions under section 243(d) of the INA, 8 U.S.C. 1253(d), to get such countries to cooperate. 50

49 See INA sec. 243(d), 8 U.S.C. 1253(d); see also Memorandum of Understanding Between the Secretaries of State and Homeland Security Concerning Implementation of Section 428 of the Homeland Security Act of 2002, para. 3(c) (2003).

50 See, e.g., DHS, “DHS Announces Implementation of Visa Sanctions,” July 10, 2018 (implementing visa restrictions on the governments of Burma and Laos for denying or unreasonably delaying the acceptance of their nationals who have been ordered removed from the United States), https://www.dhs.gov/archive/news/2018/07/10/dhs-announces-implementation-visa-sanctions.

2. Withholding of Removal Under the INA and Regulations Implementing CAT and Deferral of Removal Under Regulations Implementing CAT

Even if an alien is inadmissible or deportable and has a final order of removal, DHS's authority to remove an alien in certain cases may be further restricted by certain statutory and regulatory provisions implementing U.S. treaty obligations concerning non-refoulement (non-return). The United States is a party to the 1967 Protocol relating to the Status of Refugees (Protocol), which incorporates, inter alia, Article 33 of the 1951 Convention relating to the Status of Refugees. 198 U.N.T.S. 137. Article 33 specifically provides that “[n]o contracting state shall expel or return ( refouler ) a refugee in any manner whatsoever to the frontier of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group, or political opinion.” 51 The United States is also a party to CAT. 52 Article 3 of CAT requires that “[n]o State Party shall expel, return (`refouler') or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture.” 53

51 Convention Relating to the Status of Refugees, Treaty Series, vol. 198, p. 137, art. 33 (July 28, 1951).

52 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Treaty Series, vol. 1465 (Dec. 10, 1984).

53 Id.

Though neither of these treaties is self-executing, the United States has implemented its non-refoulement obligations under these treaties in statutes and regulations. 54 With respect to Protocol, Congress implemented the United States' non-refoulement obligations as part of the Refugee Act of 1980, section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3). With respect to CAT, Congress directed the appropriate agencies to publish regulations to implement the United States' obligations under Article 3 of the CAT in the Foreign Affairs Reform and Restructuring Act of 1998 (FARRA), Public Law 105-277, div. G., sec. 2442(b) (Oct. 21, 1998). The Department of Justice (DOJ) published regulations in 1999 implementing FARRA sec. 2442. See 64 FR 8478 (Feb. 19, 1999). The regulations governing withholding of removal based on section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), and withholding and deferral of removal under CAT are now codified in principal part at 8 CFR 208.16 through 208.18 and 1208.16 through 1208.18.

54 See, e.g., Trinidad y Garcia v. Thomas, 683 F.3d 952, 955 (9th Cir. 2012); Pierre v. Gonzales, 502 F.3d 109, 119-20 (2d Cir. 2007); Matter of H-M-V-, 22 I&N Dec. 256, 259-60 (BIA 1998).

Aliens granted withholding of removal based on section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), and aliens granted withholding of removal based on the regulations implementing CAT, 8 CFR 208.16(c) and 1208.16(c), are both subject to mandatory bars to withholding if the aliens participated in Nazi persecution, participated in genocide, committed an act of torture and extrajudicial killing, participated in the persecution of others, have been convicted of a particularly serious crime, have committed a serious nonpolitical crime outside the United States prior to arrival, or are a danger to the security of the United States. 55 However, even if an alien is not eligible for withholding under the provisions noted above because he or she is subject to one of the mandatory bars to withholding, DHS still is not permitted to remove an alien from the United States if an Immigration Judge (IJ) or the Board of Immigration Appeals (BIA) has determined that removal would result in the alien being removed to a country where he or she would more likely than not be tortured. 8 CFR 208.17 and 1208.17. In such instances, the IJ or BIA defers removal to that country.

55 The regulations at 8 CFR 208.16(d)(2) specifically provide that an application for withholding of removal under the regulations implementing CAT shall be denied if the alien falls within section 241(b)(3)(B) of the INA, 8 U.S.C. 1231(b)(3)(B).

Withholding of deportation or removal based on section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), or the regulations implementing U.S. obligations under CAT Article 3 (“CAT withholding”) (if the alien is not subject to a mandatory bar) and CAT deferral of removal are mandatory and must be granted if the alien meets the burden of proof. See 8 CFR 1208.16(b), (c)(4) and 1208.17(a). Once an alien has been granted withholding or deferral of removal, DHS cannot remove the alien to the country from which removal has been withheld or deferred unless the alien's case is reopened and withholding is terminated under 8 CFR 208.24 or 1208.24, or deferral is terminated under 8 CFR 208.17 or 1208.17. In most instances, an alien granted withholding of removal or deferral of removal under the regulations implementing CAT will be released pursuant to an order of supervision, but such an order does not alter or affect the nondiscretionary nature of the withholding or deferral of removal grant, even if the alien subsequently violates the conditions for release as specified in the order of supervision. Such violations could result in a return of the alien to ICE custody but will not result in the alien's actual removal from the United States to the relevant country or countries in question unless the alien's case is reopened, and withholding is terminated under 8 CFR 208.24 or 1208.24 or deferral of removal is terminated under 8 CFR 208.17 or 1208.17.

3. Parole

The INA confers upon the Secretary the narrow discretionary authority to parole applicants for admission, regardless of admissibility, into the United States “temporarily under such conditions as [DHS] may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit.” 56 Additionally, upon a finding by DHS that the purpose of the temporary, discretionary parole has been served, the alien is required to depart the United States “or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.” 57

56 INA sec. 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A); see also 8 CFR 212.5(a) and (c) through (e) (discretionary authority for establishing conditions of parole and for terminating parole).

57 INA sec. 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A).

Since the late 19th century, the Government has used some form of parole to allow inadmissible aliens to come into and temporarily remain in the United States. 58 Congress did not codify this parole authority until 1952, with the enactment of the INA. 59 Section 212(d)(5) of the 1952 INA authorized the Attorney General to parole an alien into the United States for “emergent reasons or for reasons deemed strictly in the public interest.” 60 In a House Report accompanying the 1952 INA, Congress indicated that parole was meant for

58 See, e.g., Kaplan v. Tod, 267 U.S. 228, 230 (1925); see also Nishimuru Ekiu v. United States, 142 U.S. 651, 661 (1892) (recognizing that the immigration authorities could authorize an alien to come ashore temporarily, without admission, while admissibility was litigated, leaving the alien in the same position as she was); Leng May Ma v. Barber, 357 U.S. 185, 188-90 (1958) (a paroled alien is still deemed an alien seeking admission to the United States).

59 Public Law 82-414, 66 Stat. 163 (June 27, 1952).

60 Id. at 66 Stat 188.

emergency cases, such as the case of an alien who requires immediate medical attention before there has been an opportunity for an immigration officer to inspect him, and in cases where it is strictly in the public interest to have an inadmissible alien present in the 61 61 See, e.g., H.R. Rep. 82-1365, p. 1706 (Feb. 14, 1952).

The INA, however, did not address whether the authority could be used to parole groups of inadmissible aliens.

Subsequent to 1952, the parole authority was repeatedly used to parole large groups of inadmissible aliens, namely refugees from Hungary, Cuba, China, Czechoslovakia, the Soviet Union, Uganda, and Vietnam. 62 Although some in Congress criticized this use of the parole authority, 63 Congress passed legislation to provide a path to lawful permanent residence for certain groups of aliens who had been paroled into the United States by the U.S. Government. 64

62 See, e.g., Implementation of Haitian Family Reunification Parole Program, 79 FR 75581 (Dec. 18, 2014); Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers, 87 FR 18078 (Mar. 29, 2022) (lowering the standard to parole an alien who had not yet established credible fear).

63 See, e.g., H. Rept. 89-748, p. 3335 (Sept. 15, 1965), accompanying the Immigration and Nationality Act—Amendments of 1965:

Inasmuch as definite provision has now been made for refugees, it is the express intent of the committee that the parole provisions of the Immigration and Nationality Act, which remain unchanged by this bill, be administered in accordance with the original intention of the drafters of the legislation. The parole provisions were designed to authorize the Attorney General to act only in emergent, individual, and isolated situations, such as the case of an alien who requires immediate medical attention, and not for the immigration of classes or groups outside the limit of the law.

64 See, e.g., Public Law 85-559, 72 Stat. 419-20 (July 25, 1958) (stating that any alien who was paroled into the United States as a refugee from the Hungarian Revolution who is found “to have been and to be admissible as an immigrant at the time of his arrival in the United States and at the time of his inspection and examination, except for the fact that he was not and is not in possession of the documents required by . . . the Immigration and Nationality Act, shall be regarded as lawfully admitted to the United States for permanent residence as of the date of his arrival”); Public Law 89-732, 80 Stat. 1161 (Nov. 2, 1966) (similarly relating to aliens paroled into the United States after fleeing Cuba due to the 1959 Cuban Revolution).

In 1980, Congress passed the Refugee Act, narrowing the parole authority by prohibiting the parole of refugees unless “compelling reasons in the public interest with respect to that particular alien” required parole rather than admission as a refugee. 65 The parole authority for non-refugees remained the same.

65 Public Law 96-212 (1980) (codified at 8 U.S.C. 1182(d)(5)(B)).

According to some scholars, the Refugee Act's amendment represented continued congressional displeasure with the Executive Branch's use of the parole authority in the preceding decades. 66 The Senate Report accompanying the Refugee Act states that one of the Act's purposes was to “[e]nd[ ] the years of ad hoc use of the parole authority, which has been implemented by custom rather than clearly defined by law.” 67

66 E.g., Adam B. Cox & Cristina M. Rodríguez, The President and Immigration Law, 119 Yale L.J. 458, 474-76 (2009) (“Congress added the language to the INA in 1980 in large part to restrict the use of parole in refugee contexts, including with respect to the Executive's heavy reliance on the power to manage the Haitian exoduses.”); Peter Margulies, The Boundaries of Executive Discretion: Deferred Action, Unlawful Presence, and Immigration Law, 64 a.m. U. L. Rev. 1183, 1213 (2015) (“This language itself emerged in 1980 from congressional displeasure over expansive uses of discretion by the Executive Branch.”).

67 S. Rep. 96-256 at 5 (1979).

Despite this congressional criticism, the Executive Branch continued to use the parole authority to parole categories of aliens from 1980 until 1996, including for Vietnamese and other Southeast Asian populations, and U.S. expatriates. 68 In 1996, Congress passed the IIRIRA. 69 As part of its reform of the immigration laws, Congress specifically addressed its concerns about the broad use of the parole authority to allow groups of refugees to come to the United States. Congress amended the text of section 212(d)(5)(A) of the INA, 8 U.S.C. 1182(d)(5)(A), to make clear that the Attorney General could grant parole, as a matter of discretion, “ only on a case-by-case basis for urgent humanitarian reasons or significant public benefit” (emphasis added). 70

68 Refugee Act of 1979, S.643 Before the S. Comm. on the Judiciary, 96th Cong. 253, (1979) (annual report of H.E.W. on the Indochinese Refugee Assistance Program) (describing an “expanded parole program” for 11,000 additional Cambodian, Vietnamese, and Laotian refugees); Marian Nash Leich, Contemporary Practice of the United States Relating to International Law, 82 a.m. J. of Int'l L. 336, 336-337 (1988) (parole for U.S. expatriates who had renounced U.S. citizenship) (citing to Circular Telegram, State 386507).

69 Public Law 104-208, Div. C (Sept. 30, 1996).

70 Id. at title VI, sec. 602.

Following Congress' amendment in 1996, the parole authority continued to be used expansively to create new categorical parole programs. In 2000, for example, the parole authority was used to manage the statutorily sunsetting Visa Waiver Pilot Program under section 217 of the INA, 8 U.S.C. 1187, in its entirety, to avoid the wholesale disruption of international travel and commerce, and the serious harm to the U.S. economy and foreign relations, that would have resulted from suddenly imposing visa requirements on visitors for business or pleasure from most developed countries. 71 Under this Visa Waiver Pilot Program, tens of millions of foreign visitors were paroled into the United States between May 1 and October 1, 2000. 72 In subsequent years, the parole authority was used to create smaller categorical programs. For example, the Bush Administration created the Cuban Family Reunification Parole program in 2007. 73 The Obama Administration created several parole programs, including the Haitian Family Reunification Parole Program in 2014, 74 the Filipino World War II Veterans Parole program in 2016, 75 and Parole for International Entrepreneurs in 2017. 76 More recently, the Biden Administration created several categorical parole programs, 77 including the parole programs for inadmissible aliens from Cuba, Haiti, Nicaragua, and Venezuela (“CHNV parole programs”). 78

71 David J. Bier, 126 Parole Orders over 7 Decades: A Historical Review of Immigration Parole Orders, July 17, 2023, at https://www.cato.org/blog/126-parole-orders-over-7-decades-historical-review-immigration-parole-orders.

72 Cong. Research Service, Visa Waiver Program (Oct. 15, 2024), https://www.congress.gov/crs-product/RL32221.

73 72 FR 65588 (Nov. 21, 2007).

74 79 FR 75581 (Dec. 12, 2014).

75 81 FR 28097 (May 9, 2016).

76 See 82 FR 5238 (Jan. 17, 2017). In 2018, DHS published a proposed rule to rescind the International Entrepreneur Parole Program. 83 FR 24415 (May 29, 2018).

77 88 FR 1266 (Jan. 9, 2023); 88 FR 26329 (Apr. 28, 2023); 88 FR 1243 (Jan. 9, 2023); 88 FR 26327 (Apr. 28, 2023); 88 FR 1255 (Jan. 9, 2023); 87 FR 63507 (Oct. 19, 2022); 88 FR 1279 (Jan. 9, 2023).

78 On March 25, 2025, the Trump Administration published a notice in the Federal Register titled, “Termination of Parole Processes for Cubans, Haitians, Nicaraguans, and Venezuelans”. 90 FR 13611 (Mar. 25, 2025). On April 14, 2025, a United States district court issued a preliminary injunction order staying parts of the FRN. See Svitlana Doe, —v. Noem, 778 F. Supp. 3d 311 (D. Mass. 2025). However, DHS filed an application for a stay of the district court order with the U.S. Court of Appeals for the First Circuit, which was denied. On May 8, 2025, DHS filed with the Supreme Court an application to stay the district court's order. On May 30, 2025, the Supreme Court granted DHS' application for stay of the district court's order pending disposition of the appeal pending before the U.S. Court of Appeals for the First Circuit. Noem v. Doe, 145 S. Ct. 1524 (2025). Accordingly, the parole termination notices and employment authorization termination notices that DHS sent to aliens paroled under the CHNV parole programs remain in effect. USCIS also will not process any new requests for parole related to CHNV programs.

On July 4, 2025, the President signed H.R. 1, Public Law 119-21, 139 Stat. 72 into law. It established a new fee for an initial or renewal application for employment authorization by any alien paroled into the United States and also placed a limit on the validity of employment authorization to one year or the duration of the alien's parole, whichever is shorter. 79

79 See Section 100003(b)(1) of Part I, Title X of Public Law 119-21 (July 4, 2025), 8 U.S.C. 1803(b)(1) (defining the validity period for initial employment authorization of parolees to a period of 1 year or for the duration of the alien's parole, see also Section 100010(a) of Part I, Title X of Public Law 119-21 (July 4, 2025); 8 U.S.C. 1809(a) (defining the validity period for renewal employment authorization of parolees to a period of 1 year or for the duration of the alien's parole, whichever is shorter.). On July 22, 2025, USCIS published a notice in the Federal Register at 90 FR 34511announcing the new H.R. 1 fee requirements, applicable to benefit requests postmarked on or after July 22, 2025, which includes application for employment authorization filed by parolees under 8 CFR 274a.12(c)(11).

4. Deferred Action

Since the late 1800s, the Supreme Court has recognized the authority of the Executive Branch to expel or exclude aliens from the United States and viewed such power as “an incident of sovereignty belonging to the government of the United States as a part of those sovereign powers delegated by the Constitution.” 80 This authority was codified in the Immigration and Nationality Act of 1952, 8 U.S.C. 1101 et seq. Over the years, Congress has clarified and strengthened the immigration enforcement authorities and provisions in the INA. 81 In 2002, with the creation of DHS, Congress reaffirmed this authority by giving the Secretary authority to enforce the immigration laws; to apprehend, detain, and remove aliens from the United States; and to establish “national immigration enforcement policies and priorities.” 82

80 Chae Chan Ping v. United States, 130 U.S. 581, 606-09 (1889).

81 For example, in 1996, Congress passed the Anti-Terrorism and Effective Death Penalty Act (AEDPA), Public Law 104-132, title IV, 110 Stat. 1214 (Apr. 24, 1996) and IIRIRA. AEDPA and IIRIRA made significant changes to U.S. immigration laws. By passing AEDPA and IIRIRA, Congress underscored the importance of enforcement of the immigration laws as critical for upholding national security, public safety, and the integrity of the U.S. immigration system.

82 See Homeland Security Act of 2002 (HSA), Public Law 107-296, secs. 202(5), 234; 6 U.S.C. 202(5), 557; see also INA secs. 103(a)(1) 8 U.S.C. 1103(a)(1)

The Secretary's enforcement powers also come with an inherent authority to exercise prosecutorial discretion to not take a specific enforcement action against an alien. 83 Deferred action is a form of discretion in which DHS chooses to not seek an alien's removal from the United States even though the alien lacks lawful status or is otherwise removable from the United States. 84 Deferred action is not a legal immigration status that permits an alien to obtain immigration relief for which the alien is not eligible. Rather, deferred action is a form of enforcement discretion reflecting a decision not to pursue removal from the United States for a specified period of time. Unlike parole, deferred action was not created by statute and is not specifically defined in the INA. However, the authority not to execute an enforcement action is a quintessential feature of the Secretary's immigration enforcement powers. The Supreme Court has stated that the decision not to take an enforcement action is within the discretion of the agency, and such decisions are generally not subject to judicial review. 85

83 See, e.g., United States v. Texas, 599 U.S. 670, 679 (2023); Arizona v. United States, 567 U.S. 387, 396 (2012); Heckler v. Chaney, 470 U.S. 821 (1985).

84 See, e.g., Reno v. Am.-Arab Anti-Discrimination Comm. (AADC), 525 U.S. 471, 483-84 (1999).

85 See, e.g., Heckler, 470 U.S. at 831-33; see also Texas, 599 U.S. at 678-79 (describing the Executive's power to prioritize and decide how aggressively to enforce the laws).

The former INS used deferred action for decades. 86 Prior to 1975, it was known as “non-priority status” and recognized as a use of prosecutorial discretion to defer removal of an alien for a specific period. 87 Placing an alien in non-priority status was an authority exercised by field district directors and was governed by INS Operating Instructions (OI) and policy. For example, the OIs previously provided examples of factors district directors could consider when deciding whether to place an alien in non-priority status, which included: (1) the likelihood of the alien's removal from the United States; (2) the likelihood the alien would depart without formal proceedings; (3) the age and physical condition of the alien in terms of affecting the alien's ability to travel; (4) the likelihood another country would accept the alien, if the alien were removed; (5) whether the alien could qualify for relief under the immigration laws that would prevent or indefinitely delay deportation from the United States; (6) whether the alien was considered a high priority for removal ( e.g., terrorists, international drug traffickers, smugglers); and (7) whether the alien's removal would generate adverse publicity. 88 Non-priority status was formally renamed deferred action in 1996. 89 Deferred action is not a legal immigration status that permits an alien to obtain immigration relief for which the alien is not eligible. Rather, deferred action is a form of enforcement discretion reflecting a decision not to pursue removal from the United States for a specified period.

86 See Charles Gordon et al., “Immigration Law and Procedure” (1956) 6 sec. 72.03(2)(h). See also generally Leon Wildes, “The Operations Instructions of The Immigration Service: Internal Guidelines or Binding Rules?,” 17 San Diego L. Rev. 99 (1979).

87 Id.

88 See Charles Gordon et al., at 16 § OI 242.1.

89 Id.

Even though there is no direct statutory authority for deferred action, Congress has acknowledged its use and, on certain limited and unique occasions, has referenced deferred action as an interim form of enforcement discretion to address compelling humanitarian circumstances, further a specific policy goal, or act as a bridge until specific legislative action could provide permanent relief. 90 For example, Congress referenced deferred action for alien victims of domestic abuse, trafficking, and criminal activity, as well as family members of individuals who perished during the 9/11 attacks, and surviving family members of military personnel who died while serving on active duty in the U.S. Armed Forces. 91

90 Cong. Research Service, An Overview of Discretionary Reprieves from Removal: Deferred Action, DACA, TPS, and Others (Apr. 10, 2018) https://www.congress.gov/crs-product/R45158.

91 See INA sec. 204(a)(1)(D)(i)(II) and (IV) (aliens battered or subjected to extreme cruelty); INA sec. 237(d)(2) (victims of trafficking and qualifying criminal activity); title IV, subtitle C, sections 421-428, Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56, 115 Stat. 272 (Oct. 26, 2001) (certain family members of lawful permanent resident 9/11 victims); Posthumous Benefits for Surviving Spouses, Children, and Parents of Certain Military Personnel, National Defense Authorization Act of FY 2004, Public Law 108-136, 117 Stat. 1392, title XVII, sec. 1703(c)(1)(A) and (d)(1) (certain surviving spouses, parents, children of deceased veteran of U.S. Armed Forces).

DHS still uses deferred action today, not only to address discrete situations and cases where there are exigent circumstances or compelling humanitarian factors, but also as “an act of administrative choice to give some cases lower priority.” 92 Deferred action, however, was never meant to supplant the current legal immigration process or provide long-term relief solely to allow an inadmissible, removable, or otherwise ineligible alien to remain in the United States until he or she can qualify for a legal status.

92 See AADC, 525 U.S. at 483-84.

While DHS has previously chosen to make deferred action available to large populations of aliens, the main and ancillary benefits of such make the granting of deferred action an extraordinary exercise of the Secretary's discretionary authority. A grant of deferred action should only be made on a case-by-case basis after careful consideration of the totality of the circumstances. Additionally, as deferred action is an exercise of prosecutorial discretion, it is subject to termination at any time and for any reason.

5. Employment Authorization

Whether an alien is authorized to work in the United States depends on the alien's status in the United States 93 While some statutory provisions specifically allow the Secretary to grant employment authorization as a matter of discretion, 94 the Secretary's general authorities under sections 103(a), 214(a)(1), and 274A(h)(3) of the INA, 8 U.S.C. 1103(a), 1184(a), 1324a(h)(3), among other provisions, provide the authority to establish discretionary employment authorization categories. However, in the context of aliens ordered removed, section 241(a)(7) of the INA, 8 U.S.C. 1231(a)(7), specifically prohibits an alien who has been ordered removed from the United States from being eligible to receive employment authorization unless the Secretary determines that the alien cannot be removed because no country, as designated by the alien or delineated under section 241(b) of the INA, 8 U.S.C. 1231(b), will accept the alien or the alien's removal is otherwise impracticable or contrary to the public interest.

93 See, e.g., INA sec. 101(i)(2), 8 U.S.C. 1101(i)(2) (requiring T nonimmigrants to be employment authorized); INA sec. 214(c)(2)(E), 8 U.S.C. 1184(c)(2)(E) (requiring spouses of L nonimmigrants to be employment authorized); INA sec. 214(e)(2), 8 U.S.C. 1184(e)(2) (requiring spouses of E treaty traders/investors to be employment authorized; INA sec. 214(p)(3)(B), 8 U.S.C. 1184(p)(3)(B) (requiring U nonimmigrants to be employment authorized).

94 See, e.g., INA sec. 106(a), 8 U.S.C. 1105a(a) (providing that the Secretary may grant employment authorization to alien spouses of certain nonimmigrants if the alien spouse or child of that alien spouse were battered or subjected to extreme cruelty); INA sec. 214(p)(6), 8 U.S.C. 1184(p)(6) (providing that the Secretary may grant employment authorization to aliens who have a pending bona fide application for U nonimmigrant status).

DHS regulations at 8 CFR 274a.12 set forth the categories of aliens who are authorized to work in the United States, including: those aliens who are authorized to work incident to their status (8 CFR 274a.12(a)); aliens who are authorized to work in the United States but only for a specific employer (8 CFR 274a.12(b)); and aliens who fall within a category that the Secretary has determined may be employment authorized as a matter of discretion (8 CFR 274a.12(c)). If required to file an application for employment authorization with USCIS, aliens must also submit the appropriate fee (unless exempt or waived) and in accordance with the form instructions. See 8 CFR 274a.13.

6. Biometrics Submission

Several sections of the INA provide DHS with the specific authority to collect or require submission of biometrics. See, e.g., INA section 235(d)(3), 8 U.S.C. 1225(d)(3) (providing authority “to take and consider evidence of or from any person touching the privilege of any alien or person he believes or suspects to be an alien to enter, reenter, transit through, or reside in the United States or concerning any matter which is material and relevant to the enforcement of this chapter and the administration of the Service”); INA section 287(b), 8 U.S.C. 1357(b) (powers of immigration officers and employees to administer oaths and take evidence); INA section 333, 8 U.S.C. 1444 (requirement to furnish photographs for naturalization); INA section 335, 8 U.S.C. 1446 (investigation and examination of applicants for naturalization); INA section 262(a), 8 U.S.C. 1302(a) (requirement for aliens to register and be fingerprinted); INA section 264(a), 8 U.S.C. 1304(a) (authority to prescribe contents of forms required for alien registration); see also INA section 103(a)(3), 8 U.S.C. 1103(a)(3) (conferring broad authority on the Secretary to “establish such regulations; prescribe such forms of bond, reports, entries, and other papers; issue such instructions; and perform such other acts as he deems necessary for carrying out his authority under the” immigration laws).

DHS regulations accordingly provide that USCIS may require any applicant, petitioner, sponsor, beneficiary, or individual filing a benefit request to submit biometrics and pay the biometric services fee. 95 See 8 CFR 103.2(b)(9). DHS has the authority to require the submission of biometrics from any alien, lawful permanent resident or U.S. citizen filing a request, on a case-by-case basis, through law, regulation, form instructions, or a Federal Register notice. Id.; see also 8 CFR 103.16. Current regulations allow DHS to use biometric information to conduct background and security checks, adjudicate immigration benefits, and perform other functions related to the administration of the INA. See id. at 103.16(a). DHS has the authority to charge a biometric services fee associated with the submission of biometric information. See 8 CFR 103.17.

95 Currently, biometrics collection generally refers to the collection of fingerprints, photographs, and signatures. See USCIS, “Preparing for Your Biometric Services Appointment” (July 6, 2023), https://www.uscis.gov/forms/forms-information/preparing-your-biometric-services-appointment (describing biometrics as including fingerprints, photographs, and digital signature).

On January 31, 2024, USCIS published a final rule to adjust certain immigration and naturalization benefit request fees for the first time since 2016. 96 89 FR 6194 (Jan. 31, 2024) (Fee Rule). The Fee Rule, among other changes, amended USCIS filing fees to incorporate a “biometric services fee” into the cost of the related form filing fee itself rather than charging a separate biometric fee. See 89 FR at 6277-78; see also 88 FR 402, 484-85 (Jan. 4, 2023) (proposed rule). 97 The new filing fees were effective for filings postmarked April 1, 2024, and later. The USCIS Fee Schedule is published in the Form G-1055, Fee Schedule. 98 The most recent Fee Schedule was published on March 6, 2025.

96 USCIS issued a final rule to adjust fees in 2020, but that rule was preliminarily enjoined following litigation and ultimately never went into effect. 85 FR 46788 (Aug. 3, 2020); Immigrant Legal Res. Ctr. v. Wolf, 491 F. Supp. 3d 520 (N.D. Cal. 2020) ( ILRC ); Nw. Immigrant Rights Project v. USCIS, 496 F. Supp. 3d 31 (D.D.C. 2020) ( NWIRP ).

97 The exception to this change is Form I-821, Application for Temporary Protected Status, which retained a separate biometric services fee due to the statutory $50 maximum TPS registration fee. 8 CFR 106.2(a)(48)(iii); see INA sec. 244(c)(1)(B), 8 U.S.C. 1254a(c)(1)(B); 88 FR 485; see also 8 U.S.C. 1254b(a) (“In addition to collection of registration fees described in section 1254a(c)(1)(B) of this title, fees for fingerprinting services, biometric services, and other necessary services may be collected when administering the program described in section 1254a of this title.”).

98 https://www.uscis.gov/g-1055 (last updated Mar. 6, 2025).

The Fee Rule provided DHS flexibility in its biometrics submission practices and policies to ensure that necessary adjustments can be made to meet emerging needs, conduct biometrics-based background checks, produce documents, and verify identities, while reducing filing rejections. This approach simplified the fee structure, created a more user-friendly experience, reduced rejections of benefit requests for failure to include a separate biometric services fee, and better reflected how USCIS uses biometric information.

7. E-Verify

Originating in 1996, the E-Verify program is a web-based system that allows enrolled employers to confirm the eligibility of their employees to work in the United States. 99 E-Verify employers verify the identity and employment authorization of newly hired employees by electronically matching information provided by employees on the Form I-9, Employment Eligibility Verification, against records available to DHS

99 See E-Verify, “About E-Verify” https://www.e-verify.gov/about-e-verify.

E-Verify is a free, fast, online service that electronically confirms an employee's information against millions of government records and provides results within as few as 3 to 5 seconds. While E-Verify is a voluntary program, some employers are required to enroll in it as a condition of Federal contracting, or as a condition of business licensing under State legislation or other applicable law. 100

100 See, e.g., E.O. 13465 of June 6, 2008, Amending Executive Order 12989, as amended, 73 FR 33285 (June 6, 2008) (requiring that federal contractors participate in E-Verify); Ariz. Rev. Stat. sec. 23-214 (requiring every employer to “verify the employment eligibility of the employee through the E-Verify program”). Overall, 24 states have passed laws to require employers to utilize E-Verify to varying degrees, while 7 states, including Arizona, Georgia, Mississippi, North Carolina, South Carolina, Tennessee, and Utah, have E-Verify laws that require all or most employers to use E-Verify.

Before an employer can participate in the E-Verify program, the employer must enter into a Memorandum of Understanding (MOU) with DHS. 101 By executing the MOU, employers agree to abide by lawful hiring requirements and to follow the E-Verify process to prevent unauthorized disclosure of personal information and unlawful discriminatory practices based on national origin or citizenship status. Specifically, in the MOU, the employer agrees not to use E-Verify for pre-employment screening of job applicants or in support of any unlawful employment practice. The employer further agrees to comply with title VII of the Civil Rights Act of 1964 and section 274B of the INA, 8 U.S.C. 1324b, by not discriminating unlawfully against any individual in hiring, firing, employment eligibility verification, or recruitment or referral practices because of his or her national origin or citizenship status, or by committing discriminatory documentary practices. Illegal practices can include selective verification, improper use of E-Verify, or discharging or refusing to hire an employee because he or she appears or sounds “foreign” or has received tentative non-confirmations (TNC) or mismatches. The MOU also makes clear that USCIS may suspend or terminate an employer's access to E-Verify if the employer violates title VII or section 274B of the INA, 8 U.S.C. 1324b; fails to follow required verification procedures; or otherwise fails to comply with E-Verify requirements. Any employer who violates the immigration-related unfair employment practices provisions in section 274B of the INA, 8 U.S.C. 1324b, could face civil penalties, including back pay awards. DHS may also immediately suspend or terminate the MOU, and thereby the employer's participation in E-Verify, if DHS or the SSA determines that the employer failed to comply with established E-Verify procedures or requirements. In sum, violation of the terms of this agreement by the employer is grounds for immediate termination of its participation in the program. 102

101 See E-Verify, “The E-Verify Memorandum of Understanding for Employers” (June 1, 2013), https://www.e-verify.gov/sites/default/files/everify/memos/MOUforEVerifyEmployer.pdf.

Employers participating in E-Verify must still complete a Form I-9 for each newly hired employee, as required under current law. 103 Following completion of Form I-9, the employer must enter the newly hired worker's information into E-Verify, which then checks that information against information contained in government databases. 104 Once an employer enrolls in E-Verify, that employer is responsible for confirming the employment eligibility of all new hires in E-Verify at the hiring site(s) for which the employer has chosen to use E-Verify. 105 The earliest an employer may use E-Verify with respect to an alien is after the alien accepts an offer of employment and the employee and employer complete the Form I-9. 106 Verification of the employee's identity and employment authorization and creating the E-Verify case must be done no later than the end of 3 business days after the new hire's first day of employment. Generally, E-Verify applies to new hires only and cannot be used to verify expiring work authorization of a current employee (including those aliens authorized employment under the (c)(11), (c)(14), and (c)(18) categories). 107

103 See E-Verify, “Account Compliance,” https://www.e-verify.gov/employers/monitoring-and-compliance (last updated Aug. 20, 2019).

104 See id. For example, E-Verify compares employee information against records in the SSA database and those available to DHS. Most employees are automatically confirmed as work authorized. In Fiscal Year 2024 (Oct. 2023-Sept. 2024), the E-Verify program processed a total of 42,766,806 cases. During this same time period, 98.49 percent of employees were automatically confirmed as authorized to work (“work authorized”) either instantly or within 24 hours, requiring no employee or employer action. See E-Verify, “E-Verify Performance,” https://www.e-verify.gov/about-e-verify/e-verify-data/e-verify-performance (last updated Mar. 14, 2024).

105 E-Verify User Manual, Section 1.4. “Verification Locations and Hiring Sites,” https://www.e-verify.gov/quick-reference-guide-for-e-verify-enrollment-10-introduction/14-verification-locations-and-hiring (last updated July 18, 2018).

106 “E-Verify Performance,” https://www.e-verify.gov/about-e-verify/e-verify-data/e-verify-performance (last updated Mar. 14, 2024).

107 E-Verify, “May I Verify an Existing Employee in E-Verify?” (Aug. 18, 2023) (stating that only “federal contractors with a federal contract that contains the FAR E-Verify clause” may verify existing employees), https://www.e-verify.gov/faq/may-i-verify-an-existing-employee-in-e-verify.

E-Verify, which is available in all 50 states, the District of Columbia, Puerto Rico, Guam, the U.S. Virgin Islands, and the Commonwealth of the Northern Mariana Islands, is currently the best means available to electronically confirm employment eligibility. The program allows employers to confirm the eligibility of their employees to work in the United States and shows that employers have done their due diligence by comparing information from an employee's Form I-9, Employment Eligibility Verification, to records available to DHS and SSA.

C. Purpose

DHS has determined that the current regulations governing discretionary employment authorization for aliens who are paroled into the United States, have been granted deferred action, or have an order of removal and an order of supervision do not adequately reflect DHS's enforcement mission and priorities.

Obtaining employment authorization in the United States has long been, and continues to be, a significant incentive for aliens to (legally and illegally) migrate to and remain in the United States. 108 As such, employment authorization must be carefully regulated to maintain the integrity of the U.S. immigration system.

108 See, e.g., Elizabeth Jacobs, Center for Immigration Studies, The Availability of Work Authorization Is a Known `Pull Factor' for Illegal Immigration and the Submission of Fraudulent Asylum Claims (Feb. 7, 2024) (“The idea that work authorization availability serves as a strong incentive for an alien to file a fraudulent or frivolous asylum application is not a new one.”), https://cis.org/Jacobs/Availability-Work-Authorization-Known-Pull-Factor-Illegal-Immigration-and-Submission.

1. Strengthening Protections for American Workers

This proposed rule is consistent with the Administration's efforts to strengthen protections for American workers and minimize the risk of disadvantaging American workers.

As noted above, E.O. 14159 articulates the Administration's goal for the federal government to provide for the financial and economic well-being of U.S. workers. Protecting, strengthening, and developing the U.S. workforce is critical to establishing economic security, 109 with the adverse impacts typically, if not predominantly, borne by under-skilled or minority native workers. 110 This proposed rule will mitigate these adverse impacts because it is possible that some aliens who would have received employment authorization under the (c)(11), (c)(14), and (c)(18) categories in the absence of this rule may compete for and potentially occupy jobs that American workers might have otherwise acquired.

109 See, e.g., The Economic and Fiscal Consequences of Immigration, National Academies of Sciences, Engineering, and Medicine, Francine D. Blau and Christopher Mackie, Eds. National Academies Press, 2017 at 267 (“Another regularity consistent with theory is that there are larger negative effects on native wages from immigrant inflows in the short run ( i.e., in studies of the immediate impacts of abrupt immigrant inflows or in which inflows are observed over shorter periods of time, or in the case of the structural studies, when capital is assumed fixed).

110 Id. at 241 (“Some notable patterns emerge. Confirming expectations based on economic theory about which groups are most negatively affected by immigration, native dropouts tend to be more negatively affected than better-educated natives (as indicated by comparing results for dropouts with the overall results for all workers or all men or women). The results in the table also suggest that this negative effect may be compounded for native minorities.”).

In addition to the Administration's goal of protecting workers, this proposed rule is also part of a broader initiative by the President to modernize, strengthen, and revitalize the American workforce at all levels. For example, E.O. 14278, Preparing Americans for High-Paying Skilled Trade Jobs of the Future, 111 espouses the overarching commitment to “equip American workers to fill the growing demand for skilled trades and other occupations” by, among other things, developing “[o]pportunities to integrate systems and realign resources to address critical workforce needs and in-demand skills of emerging industries and companies investing in the United States.” E.O. 14278, secs. 2, 3(a). Relatedly, in America First Trade Policy, the President articulated his goal of “establishing a robust and reinvigorated trade policy that promotes investment and productivity, enhances our Nation's industrial and technological advantages, defends our economic and national security, and—above all—benefits American workers, manufacturers, farmers, ranchers, entrepreneurs, and businesses. 112 These pronouncements embody the President's overarching goal of developing and bolstering opportunities for American workers of all levels. This proposed rule, thus, represents, one part of this larger initiative and broad array of policies to strengthen protections for American workers.

111 90 FR 17525 (Apr. 28, 2025).

112 90 FR 8471 (Jan. 30, 2025).

2. Aliens With Final Orders of Removal

a. Immigration Enforcement

Enforcement of the nation's immigration laws is essential to the integrity of the immigration system, as it ensures that only those who are legally qualified and lawfully in the United States are allowed to avail themselves of any benefits under the INA. In 1996, Congress passed the Anti-Terrorism and Effective Death Penalty Act (AEDPA), Public Law 104-132, title IV; 110 Stat. 1214 (Apr. 24, 1996) and the IIRIRA, Public Law 104-208, div. C; 110 Stat. 3009 (Sept. 28, 1996). AEDPA and IIRIRA made sweeping changes to U.S. immigration laws focusing on immigration enforcement, detention of aliens, and bars to certain types of relief, protection from removal, and grants of legal status. IIRIRA expanded the Attorney General's (now Secretary's) authority to detain aliens, including requiring mandatory detention of aliens convicted of aggravated felony offenses and the detention of aliens pending removal from the United States. It also created an expedited removal process for aliens who do not have proper documents or who make material misrepresentations and who are arriving in the United States, or, as designated by the Secretary, aliens who have not been inspected and admitted or paroled into the United States and cannot prove continuous presence in the United States for at least 2 years. 113 By passing AEDPA and IIRIRA, Congress made clear that enforcement of the immigration laws is a priority and is critical for purposes of national security, public safety, and the integrity of the U.S. immigration system.

113 See INA sec. 235(b)(1), 8 U.S.C. 1225(b)(1).

However, DHS is not always able to promptly remove aliens with final orders of removal. Sections 241(a)(1) and (2) of the INA, 8 U.S.C. 1231(a)(1) and (2), provide for a 90-day removal period in which the Secretary is authorized to detain the alien and within which the Secretary shall remove the alien. However, the removal of aliens from the United States and repatriation to their home countries can be a difficult and time-consuming process that can be further complicated by legal appeals or impeded by a lack of sufficient agency resources. Delays in removal can also occur because some countries unreasonably delay the issuance of travel documents or unreasonably delay accepting the repatriation of their nationals.

Although DHS has authority to detain aliens with final orders of removal during the removal period, if DHS cannot effectuate an alien's removal in a 6-month period, DHS must generally release such aliens from detention. 114 Based on data on removals executed by DHS, it may take DHS 6 months or longer to obtain travel documents and remove an alien from the United States. 115 As stated above, based on 2019 removal data, it takes DHS an average of 187.19 days, roughly 6 months, to obtain travel documents and remove an alien from the United States. However, this length of time can change due to a number of factors such as significant changes in migration, priority shifts, country agreements, backlogs, advances in technology, delivery methods, and security concerns. Due to the decision in Zadvydas, DHS has had to release thousands of aliens from immigration detention as illustrated in the table below, including aliens convicted of aggravated felonies and other serious crimes.

114 See generally Zadvydas, 533 U.S. 678 (recognizing a six-month period of detention to be presumptively reasonable for aliens with final orders of removal).

115 Office of Inspector General, DHS, “ICE Faces Barriers in Timely Repatriation of Detained Aliens” (Mar. 11, 2019), Table 2, https://www.oig.dhs.gov/sites/default/files/assets/2019-03/OIG-19-28-Mar19.pdf. Please note, this is the most recent data available.

EP05JN26.011

When aliens with final orders of removal are released from DHS custody, the aliens are released under an order of supervision, which contains conditions for release, such as requiring aliens to assist with efforts to procure travel documents and present themselves for removal in the event removal can be arranged. Once temporarily released on an order of supervision, an alien may apply for employment authorization under 8 CFR 274a.12(c)(18). Each year, USCIS approves thousands of initial requests for employment authorization and renewals of such authorization for aliens released from DHS custody on an OSUP, as shown in Table III.2.

EP05JN26.012

As noted above, E.O. 14159 made the successful enforcement of final orders of removal a priority for the Administration and directed the Secretary to take all appropriate action to ensure the faithful execution of immigration laws and to promptly revoke any memoranda, guidance, policy, or action that is inconsistent with the objectives espoused in E.O. 14159. Consistent with the above, DHS examined the current regulation at 8 CFR 274a.12(c)(18) governing employment eligibility for aliens with a final removal order and temporarily released on OSUP. DHS determined that this regulation is inconsistent with the Administration's enforcement priorities because it allows aliens temporarily released on an order of supervision to qualify for employment authorization

The current regulation at 8 CFR 241.5(c) largely restates the language of section 241(a)(7) of the INA, 8 U.S.C. 1231(a)(7), 116 and also does not clearly place the burden on the alien to establish that he or she warrants a favorable exercise of discretion to obtain employment authorization. It also does not require an alien who has a final order of removal and has been temporarily released on an order of supervision to establish on what basis he or she is seeking employment authorization, either under section 241(a)(7)(A) of the INA, 8 U.S.C. 1231(a)(7)(A), because every country designated by the alien or described in section 241(b) of the INA, 8 U.S.C. 1231(b) has refused to receive the alien, or under section 241(a)(7)(B) of the INA, 8 U.S.C. 1231(a)(7)(B), because removal is impracticable or against the public interest. Proposed 8 CFR 274a.12(c)(18) clarifies that the burden is on the alien, not the U.S. Government, to establish that he or she is eligible for a discretionary benefit. Further, DHS is now proposing to clearly indicate that an alien applying for employment authorization under the (c)(18) category must provide a completed ICE Form I-220B, Order of Supervision indicating that DHS determined the alien could not be removed because every country identified by the U.S. government as an alternate country of removal, and every country the U.S. government has asked to accept the alien, has failed to provide the appropriate travel documents. See proposed 8 CFR 274a.13(a)(3)(iii). This change is being made to clarify that DHS makes the determination if an alien's removal is impracticable or contrary to the public interest, and the alien must submit a completed I-220B reflecting this determination.

116 The Department notes that current 8 CFR 241.5(c)(1)—that an officer may grant employment authorization if “the alien cannot be removed in a timely manner”—does not directly mirror INA 241(a)(7)(A), 8 U.S.C. 1231(a)(7)(A) (“No alien ordered removed shall be eligible . . . unless the Attorney General makes a specific finding that—(A) the alien cannot be removed due to the refusal of all countries designated by the alien or under this section to receive the alien”). The Department believes the changes made to 8 CFR 274a.12(c)(18)—providing that an alien is eligible for work authorization under this category only if all countries from which DHS requested travel documents have failed to issue such documents—is more closely aligned with INA 241(a)(7)(A).

DHS has determined that granting employment authorization to aliens who have final orders of removal and are released on OSUP, except in very limited circumstances, undermines the removal scheme created by Congress and incentivizes such aliens to remain in the United States instead of complying with their removal orders, working with the country of removal to obtain travel documents in a timely manner, and departing the United States. DHS's proposed changes will encourage aliens to obtain travel documents in a timely manner and depart the United States as ordered. The revisions proposed under this rule will address these concerns and align the grant of employment authorization with the Administration's enforcement priorities.

b. Exception to Employment Authorization Bars

DHS recognizes that there are certain times an alien cannot be removed from the United States because DHS is unable to obtain travel documents from a country of removal. Therefore, DHS is proposing to create a narrow exception to the bar to employment authorization. DHS will continue to allow aliens who are subject to a final order of removal and released on an order of supervision to apply for discretionary employment authorization, if: (1) the alien is complying with the conditions of release described in their order of supervision, (2) DHS has determined that the alien's removal is impracticable, either at the time of the alien's release from custody or at the time the alien checks in with ICE as scheduled and required by the terms of the alien's order of supervision, because all countries from which DHS has requested travel documents at that time have failed to issue such documents, (3) the alien establishes economic necessity, and (4) DHS determines that the alien otherwise warrants a favorable exercise of discretion for a grant of employment authorization.

DHS anticipates that the number of aliens who are subject to a final order of removal for whom DHS has determined that their removal is impracticable will be relatively small. For example, in FY 2024, only 120 aliens who were temporarily released from ICE custody on OSUP could not be removed in that fiscal year due to DHS's inability to obtain travel documents during the fiscal year in which the aliens were counted (Table III.3). DHS estimates this proposed rule would result in an annual average of 322 aliens temporarily released from ICE custody on OSUP remaining eligible for employment authorization under the exception.

EP05JN26.013

As reflected in Table III.3, the number of aliens who would qualify for this exception should remain small because even after an alien is temporarily released on OSUP, DHS continues to work with the appropriate foreign governments to obtain travel documents, and DHS sometimes receives travel documents for such aliens shortly after their release or within the following fiscal year. As the 10-year average was 322 aliens, and no single year was above 660 aliens, DHS anticipates that the number will remain relatively small.

Finally, allowing aliens who fall within the exception to be eligible for employment authorization is consistent with section 241(a)(7) of the INA, 8 U.S.C. 1231(a)(7). Section 241(a)(7) bars employment authorization for aliens who have been ordered removed, unless certain conditions are met. No alien subject to a final order of removal has a right to apply for or obtain employment authorization from USCIS, and Congress made this clear when it enacted section 241 as part of IIRIRA and stated that none of the provisions of this section create any substantive or procedural right or benefit. See INA sec. 241(h), 8 U.S.C. 1231(h). 117 Section 241(a)(7) of the INA, 8 U.S.C 1231(a)(7), however, gives the Secretary discretionary authority to grant employment authorization if the Secretary determines, in his or her sole and unreviewable discretion, that: (1) an alien cannot be removed from the United States because all countries of removal as designated by the alien or delineated under section 241 of the INA, 8 U.S.C. 1231, have declined to receive the alien, or (2) the alien's removal is otherwise impracticable or contrary to the public interest. INA sec. 241(a)(7)(A) and (B), 8 U.S.C. 1231(a)(7)(A) and (B). The negative framing of the statute, that no alien shall be eligible for employment authorization unless certain conditions are met, demonstrates that these conditions are necessary, not sufficient, for eligibility. The Secretary is thus not required to make a finding under either INA 241(a)(7)(A) (an alien cannot be removed due to the refusal of all countries designated by the alien or under this section to receive the alien) or (B) (the alien's removal is “otherwise impracticable or contrary to the public interest”). See INA sec. 241(a)(7)(A), (B), 8 U.S.C. 1231(a)(7)(A), (B). Similarly, the Secretary is not required to make a specific finding under either clause of subparagraph (B). The Secretary can choose to maintain the permanent bar on employment authorization for all aliens subject to a final order of removal or otherwise establish reasonable requirements.

117 Section 241(h) of the INA, 8 U.S.C. 1231(h), specifically states “(h) Statutory construction.—Nothing in this section shall be construed to create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agencies or officers or any other person.”

In this rulemaking, DHS is not making any determination under subparagraph (A) of section 241(a)(7) of the INA, 8 U.S.C. 1231(a)(7). Such a determination is not necessary or required. Making such a determination would be inconsistent with the Administration's enforcement priorities. DHS works to ensure that all aliens who have a final order of removal will eventually be subject to removal from the United States, either, consistent with its non-refoulement obligations: to a country where the alien is a citizen, subject, or national; to a country where the alien was born or the alien has a residence; or to any country that is willing to accept the alien.

DHS also is not making any determinations based on the “public interest” clause of subparagraph (B) of section 241(a)(7) of the INA, 8 U.S.C. 1231(a)(7)(B), because there are already sufficient alternate avenues available for aliens whom DHS has determined that it is in the public's interest for them to remain temporarily in the United States and receive employment authorization. The text of section 241(a)(7)(B) of the INA, 8 U.S.C. 1231(a)(7)(B) is written in the disjunctive and, as such, the two clauses in subparagraph (B) are separate and can be analyzed separate and apart from each other. 118 For example, when an alien with a final order of removal is assisting law enforcement entities, and the alien's removal is contrary to the public interest because of such assistance, there are avenues for such an alien to qualify for employment authorization, in part, based on his or 119 U nonimmigrant status (victims of qualifying criminal activity), 120 or S nonimmigrant status (witnesses in criminal investigations or prosecutions), 121 or are granted continued presence (temporary immigration designation for certain trafficking victims), 122 deferred action, or parole under section 212(d)(5) of the INA, 8 U.S.C. 1182(d)(5). These existing avenues reflect the public interest in strengthening cooperation with law enforcement and provide DHS with the appropriate framework to assess the nature of the alien's assistance to law enforcement.

118 See, e.g., Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979) (“Canons of construction ordinarily suggest that terms connected by a disjunctive be given separate meanings, unless the context dictates otherwise; here it does not.”) (citations omitted).

119 See INA sec. 101(a)(15)(T), 8 U.S.C. 1101(a)(15)(T) (eligibility requirements include compliance with any reasonable request from a law enforcement agency for assistance in the investigation or prosecution of human trafficking).

120 See INA sec. 101(a)(15)(U), 8 U.S.C. 1101(a)(15)(U) (eligibility requirements include helpfulness to law enforcement in the investigation or prosecution of a qualifying crime).

121 See INA sec. 101(a)(15)(S), 8 U.S.C. 1101(a)(15)(S) (eligibility requirements include providing law enforcement critical, reliable information necessary to the successful investigation or prosecution of a criminal organization).

122 See 22 U.S.C. 7105(c)(3); 28 CFR 1100.35 (Federal law enforcement official must determine the alien is a victim of a severe form of trafficking and may be a potential witness to such trafficking).

Therefore, except for aliens for whom the Secretary has made a finding under the impracticability clause of section 241(a)(7)(B) of the INA, 8 U.S.C. 1231(a)(7)(B), no alien with a final order of removal who has been temporarily released on an order of supervision will be eligible for employment authorization. This includes aliens who may have previously been eligible for employment authorization based on the refusal of countries to receive the alien under section 241(a)(7)(A) of the INA, 8 U.S.C. 1231(a)(7)(A), or the public interest clause of section 241(a)(7)(B) of the INA, 8 U.S.C. 1231(a)(7)(B). Furthermore, for purposes of determining employment authorization eligibility only, DHS clarifies that an alien's removal is “otherwise impracticable” under section 241(a)(7)(B) of the INA, 8 U.S.C. 1231(a)(7)(B), when DHS determines that all countries from which DHS has currently requested travel documents have failed to issue a travel document.

It is the Administration's policy to ensure the prompt removal of aliens who have been issued a final order of removal. ICE works to promptly remove aliens subject to a final order of removal from the United States. Removal operations require integrated coordination, management, and facilitation efforts. The removal of aliens subject to final orders of removal is a national security priority for the United States, highlighted by section 4 of E.O. 14159, making it a priority to ensure “the successful enforcement of final orders of removal.” 123 E.O. 14159 also notes that the enforcement of our immigration laws is critically important to the national security and public safety of the United States. The continued presence in the United States of aliens with final orders of removal, many of whom are criminals who have served time in our Federal, State, and local prisons and who have been, in general, determined in immigration proceedings to be ineligible to remain in the country, is contrary to the national interest. For this reason, E.O. 14159 directed the Secretary to take all appropriate action to enable the heads of ICE, CBP, and USCIS to set priorities for their agencies that protect the public safety and national security interests of the American people, including by ensuring the successful enforcement of final orders of removal. E.O. 14159 also directed the Secretary to rescind the policy decisions that led to the increased or continued unauthorized presence of illegal aliens in the United States and to align all departmental activities with the policies set out by E.O. 14159.

123 See E.O. 14159, Protecting the American People Against Invasion, 90 FR 8443 (Jan. 29, 2025).

Aliens with final orders of removal who are released from ICE custody under section 241(a)(3) of the INA, 8 U.S.C. 1231(a)(3), are subject to supervision. 124 The supervision is effectuated through ICE Form I-220B, Order of Supervision. Conditions for release typically include regular check-ins with ICE; making good faith efforts to obtain travel documents and travel arrangements; not associating with gangs, criminals, or engaging in criminal activity; and participating in requisite rehabilitative treatment programs.

124 When releasing on OSUP an alien who has been ordered removed, ICE is not necessarily determining that all applicable foreign countries are refusing to accept the alien. ICE's efforts to effectuate removal are always ongoing, and even after an alien is temporarily released on OSUP, ICE may return the alien to custody and remove the alien from the United States.

DHS has identified that granting employment authorization to aliens with final removal orders and released on OSUP exacerbates the challenges in effectuating removal by incentivizing such aliens to remain in the United States and possibly compete for jobs against American workers, instead of complying with their removal orders, working with the country of removal to obtain travel documents in a timely manner, and departing the United States.

DHS currently extends eligibility for employment authorization under 8 CFR 274a.12(c)(18) to aliens who have been ordered removed and have been temporarily released from detention under section 241(a)(3) of the INA, 8 U.S.C. 1231(a)(3), on an order of supervision (colloquially referred to as the “(c)(18) EAD”). See 8 CFR 274a.12(c)(18); see also 8 CFR 241.5(c). To apply for employment authorization, the alien must currently file a Form I-765 accompanied by required documentation and the proper fee. Required documentation for a (c)(18) EAD currently includes a copy of the order of removal and the order of supervision. USCIS requires aliens temporarily released on OSUP to submit biometrics and pay the associated fee, if applicable, as part of their initial or renewal employment authorization application. If USCIS issues the alien a (c)(18) EAD, it is valid for 1 year, 125 and USCIS mails an EAD according to the mailing preferences indicated by the alien. To renew an alien's (c)(18) employment authorization, an alien must file Form I-765, accompanied by required documentation, biometrics and the proper fees, to demonstrate that he or she remains on an order of supervision and continues to comply with it. USCIS may, in its discretion, deny an application regardless of eligibility. If USCIS denies the Form I-765 application, the agency sends a written notice to the alien explaining the basis for denial.

125 All initial and renewal EADs issued under category (c)(18) are currently valid for 1 year upon issuance. Replacement EAD cards are issued for the same dates as the previous card that would have had a validity period of 1 year.

DHS is proposing to require aliens who qualify for employment authorization under the narrow exception to the general bar to employment authorization under proposed 8 CFR 274a.12(c)(18) to establish an economic necessity for employment during the period the aliens are on OSUP. DHS proposes to revise the current list of factors it considers as a matter of discretion when adjudicating such applications for employment authorization to a list of requirements that an alien must now establish, including: the alien's compliance with the conditions for release; that DHS has determined the alien's removal is impracticable because

3. Aliens Who Have Received a Grant of Deferral of Removal Under the Regulations Implementing CAT Article 3

Aliens who have received a grant of deferral of removal under CAT, as described in 8 CFR 208.17 and 1208.17, and are released from custody under an order of supervision would be eligible for employment authorization pursuant to 8 CFR 274a.12(c)(18). USCIS would only grant authorization under 8 CFR 274a.12(c)(18) if the alien meets the eligibility criteria described in 8 CFR 274a.12(c)(18) and the alien also warrants a favorable exercise of discretion. As discussed above, aliens applying for employment authorization under the (c)(18) category must provide a completed ICE Form I-220B, Order of Supervision indicating that DHS determined the alien could not be removed because every country identified by the U.S. government as an alternate country of removal, and every country the U.S. government has asked to accept the alien, has failed to provide the appropriate travel documents. See proposed 8 CFR 274a.13(a)(3)(iii). Employment authorization will not be automatic for this population of aliens and USCIS retains the authority and discretion to determine their eligibility for EAD.

4. Aliens Paroled Into the United States

As noted above, parole is a temporary action, taken by the Secretary in the Secretary's discretion, to allow an alien who is inadmissible to temporarily enter or remain in the United States, based on urgent humanitarian reasons or a significant public benefit. This discretion is not meant to circumvent the normal process for legal immigration to the United States. The Secretary's decision to exercise discretion to temporarily parole an alien into the United States also does not create any substantive rights or confer a lawful status to such aliens and can be terminated at any time.

With some exceptions, DHS currently extends eligibility for employment authorization under 8 CFR 274a.12(c)(11) to aliens who have been paroled into the United States temporarily for urgent humanitarian reasons or significant public benefit pursuant to section 212(d)(5) of the INA, 8 U.S.C. 1182(d)(5) (colloquially referred to as the “(c)(11) EAD”). 126 To apply for a (c)(11) EAD, an alien must file a Form I-765 accompanied by required documentation and the proper fee (if applicable). 127 The required documentation to establish eligibility for a (c)(11) EAD includes a copy of the alien's valid, unexpired Form I-94, passport, or other travel document showing he or she was paroled into the United States for urgent humanitarian reasons or significant public benefit. If USCIS approves the alien's application, an EAD is issued with a validity period of 1 year or for the duration of the alien's parole, whichever is shorter, and mailed according to the mailing preferences indicated by the alien. 128 USCIS may, in its discretion, deny an application regardless of eligibility. If USCIS denies the Form I-765, the agency sends written notice to the alien explaining the basis for denial pursuant to 8 CFR 274a.13(c).

126 There are some exceptions to eligibility for employment authorization for individuals paroled into the United States. See, e.g., 8 CFR 212.19(h)(4) (a child of an entrepreneur parolee is not employment authorized). Further, in 2022, DHS and the Department of Justice adopted an interim final rule that added new paragraphs 8 CFR 235.3(b)(2)(iii) and (b)(4)(ii), clarifying that “parole” for aliens in expedited removal or during periods of detention pending a credible fear interview would be for the limited purpose of parole out of custody and would not serve as an independent basis for employment authorization. Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers, 87 FR 18078 (Mar. 29, 2022); see 8 CFR 235.3(b)(2)(iii) (a grant of parole for an alien in expedited removal is for the limited purpose of parole out of custody, and does not serve as a basis for employment authorization) and 8 CFR 235.3(b)(4)(ii) (parole of aliens pending credible fear determination is for limited purpose of parole out of custody, and does not serve as a basis for employment authorization).

127 Not all categories of (c)(11) EADs require a fee. For example, (c)(11) EADs for Special Parole processes for Immigrant Military Members and Veterans Initiative, where the alien is a current or former U.S. armed forces service member, do not have a fee. For additional information, see G-1055, Fee Schedule, https://www.uscis.gov/sites/default/files/document/forms/g-1055.pdf.

128 See Section 100003(b)(1) of One Big Beautiful Bill Act (also known as “H.R. 1”), Immigration and Law Enforcement Matters, Part I, Title X of Public Law 119-21, 139 Stat. 72 (July 4, 2025). 8 U.S.C. 1803(b)(1) (requiring new immigration fees and defining the validity period for initial employment authorization of parolees to a period of 1 year or for the duration of the alien's parole, whichever is shorter.); 90 FR 34511 (July 22, 2025) (USCIS notice announcing the new fees required by HR-1); “USCIS Updates Fees Based on H.R.1” (release date July 18, 2025), https://www.uscis.gov/newsroom/alerts/uscis-updates-fees-based-on-hr-1 (last viewed on July 28, 2025). For EADs issued prior to July 22, 2025, the date of the USCIS Federal Register notice announcing the new HR-1 fees, parole-based EADs were generally valid for the duration of the parole period.

Due to the temporary nature of parole, DHS has determined that employment authorization based on parole should be further limited to better align with the Administration's current immigration enforcement priorities, including those outlined in E.O. 14159, and efforts to strengthen protections for American workers. Moreover, it is in the best interests of the American public to limit competition between U.S. citizens and aliens for available jobs. Limiting employment authorization for aliens minimizes any disadvantages currently faced by U.S. citizens who are on the job market and increases the availability of jobs filled by aliens in similar occupations, industries, and geographic regions, such as jobs currently held by the parolees who filed the 1,211,447 approved (c)(11)-based I-765s (initial and renewals) between FY2021 and FY2024. 129 DHS further wants to ensure that aliens who are in the United States for a temporary period of time, such as those who are temporarily paroled into the United States for urgent humanitarian reasons or significant public benefit, warrant a grant of employment authorization. Therefore, DHS proposes to amend 8 CFR 274a.12(c)(11) to require aliens applying for employment authorization under 8 CFR 274a.12(c)(11) to establish an economic necessity for employment and to demonstrate that the alien warrants a favorable exercise of discretion. The types of documentation that may be used to establish an economic necessity to be employed will be provided in form instructions and other sub-regulatory guidance. DHS also proposes to add a requirement that aliens seeking to renew employment authorization under this category be employed by, or be seeking employment with, a U.S. employer who is a participant in good standing in E-Verify.

129 For more information, please see Table V.16: Total Annual Form I-765 (c)(11) Filings Receipts and Approvals, FY 2015 through FY 2024.

DHS also wants to ensure that parolees establish a need for employment authorization, that any decision to grant employment authorization is based upon that need, and that such a grant of employment authorization is consistent with the reason for granting parole. While DHS may have exercised its discretion to grant an alien parole for urgent humanitarian reasons or significant public benefit, the reasons for granting parole may not necessarily serve as the basis for a grant of employment

DHS is also proposing to amend 8 CFR 274a.12(c)(11) to conform with 8 CFR 235.3(b)(2)(iii) (detention and parole of aliens in expedited removal) and 235.3(b)(4)(ii) (detention of aliens pending credible fear interview) which state that such grants of parole are for the limited purpose of parole out of custody and cannot serve as an independent basis for employment authorization under 8 CFR 274a.12(c)(11). 130 Accordingly, for ease of reference and clarity, DHS is proposing to add this clarification to the 8 CFR 274a.12(c)(11) category itself.

130 As explained above, DHS and the Department of Justice adopted an interim final rule in 2022 that added new paragraphs 8 CFR 235.3(b)(2)(iii) and (b)(4)(ii), clarifying that “parole” for aliens in expedited removal or during periods of detention pending a credible fear interview would be for the limited purpose of parole out of custody and would not serve as an independent basis for employment authorization. 87 FR 18078; see 8 CFR 235.3(b)(2)(iii) (a grant of parole for an alien in expedited removal is for the limited purpose of parole out of custody, and does not serve as a basis for employment authorization); see also 8 CFR 235.3(b)(4)(ii) (parole of aliens pending credible fear determination is for limited purpose of parole out of custody, and does not serve as a basis for employment authorization).

5. Aliens Granted Deferred Action

Unlike parole, deferred action was not created by statute and is not specifically defined in the INA; however, as discussed above, the authority not to execute an enforcement action is a quintessential feature of the Secretary's immigration enforcement powers. 131 Despite the lack of direct statutory authority for deferred action, Congress has acknowledged its use and, on several occasions, has referenced deferred action as an interim form of enforcement discretion, as discussed above.

131 See, e.g., Heckler, 470 U.S. 831.

DHS recognizes that there are some unique cases or compelling situations that may warrant granting an alien deferred action. Deciding whether to grant deferred action involves a review of an alien's circumstances, weighing positive and negative discretionary factors, and considering the totality of the circumstances. DHS will continue to use deferred action on a case-by-case basis to address compelling humanitarian circumstances, further a specific policy goal, or act as a bridge until specific legislative action can provide permanent relief. DHS will also continue to use deferred action as a temporary measure for administrative convenience, especially considering limited resources.

Whether aliens granted deferred action should be employment authorized, however, is a separate policy determination that is grounded in the Secretary's discretionary authority to grant employment authorization under sections 103(a) and 274a(h)(3) of the INA, 8 U.S.C. 1103(a) and 1374a(h)(3).

As with employment authorization based on a grant of parole, DHS also wants to ensure that any decision to grant employment authorization based upon a grant of deferred action is based upon the need for employment authorization and that such a grant of employment authorization is consistent with the reason for deferred action. While DHS may have exercised its discretion to grant deferred action, the reasons for granting deferred action may not necessarily serve as the same basis for a grant of employment authorization. The adjudication of the request for employment authorization based on a grant of deferred action is intended to be a separate decision wherein the discretionary factors related to the request for employment authorization are weighed against each other on their own and not against the factors that were weighed against each other when granting deferred action, while noting that many of the discretionary factors between the two may be the same and carry similar positive or negative weight.

DHS currently extends eligibility for employment authorization under 8 CFR 274a.12(c)(14) to aliens who have been granted deferred action, if the alien establishes an economic necessity for employment (colloquially referred to as the “(c)(14) EAD”). For such aliens to obtain employment authorization, they must file a Form I-765 accompanied by required documentation and the proper fee (if applicable). 132 The required documentation to establish eligibility for employment authorization under 8 CFR 274a.12(c)(14) includes a copy of the alien's order, notice, or other document reflecting the grant of deferred action and proof that he or she has an economic necessity to work. USCIS considers whether an alien granted deferred action has an economic necessity to work by reviewing the alien's current annual income, current annual expenses, and the total current value of his or her assets. 133 The alien is instructed to provide this financial information on Form I-765WS, Form I-765 Worksheet.

132 For additional information, see USCIS, DHS, “Fee Schedule,” G-1055 (Apr. 3, 2025), https://www.uscis.gov/sites/default/files/document/forms/g-1055.pdf.

133 See 8 CFR 274a.12(e).

If USCIS approves the alien's application for a (c)(14) EAD, it is generally valid for the duration of the period of deferred action and is mailed according to the mailing preferences indicated by the alien. USCIS may, in its discretion, deny an application regardless of eligibility. If USCIS denies the Form I-765, the agency sends a written notice to the alien explaining the basis for denial pursuant to 8 CFR 274a.13(c).

DHS has determined that employment authorization should be further limited to better align with the DHS enforcement mission and the Administration's current immigration enforcement priorities, including those outlined in E.O. 14159. For example, E.O. 14159 expressly states that “It is the policy of the United States to faithfully execute the immigration laws against all inadmissible and removable aliens, particularly those aliens who threaten the safety or security of the American people[,]” and it requires DHS “to set priorities for their agencies that protect the public safety and national security interests of the American people, including by ensuring the successful enforcement of final orders of removal.” In addition, the E.O. compels DHS to “promptly take all appropriate action, consistent with law, to rescind the policy decisions of the previous administration that led to the increased or continued presence of illegal aliens in the United States, and align any and all departmental activities with the policies set out by this order and the immigration laws[,]” and “ensur[e] that employment authorization is provided in a manner consistent with section 274A of the INA (8 U.S.C. 1324a), and that employment authorization is not provided to any unauthorized alien in the United States.” Limiting employment authorization for aliens granted deferred action who have significant negative discretionary factors is consistent with the enforcement priorities enumerated in E.O. 14159.

In addition, Executive Order 14161, “Protecting the United States From Foreign Terrorists and Other National Security and Public Safety Threats”,

Therefore, to promote clarity, DHS is proposing to amend 8 CFR 274a.12(c)(14) to emphasize the requirement that aliens applying for employment authorization based on a grant of deferred action must establish economic necessity for employment and that the alien warrants a favorable exercise of discretion, consistent with the priorities laid out above. Also consistent with the above, DHS is proposing to amend 8 CFR 274a.12(c)(14) to limit employment authorization to a period not to exceed one year.

In addition, DHS also proposes to add a requirement that aliens who were granted initial employment authorization under 8 CFR 274a.12(c)(14) be employed by or seeking employment with a U.S. employer who is a participant in good standing in E-Verify to be eligible for a renewal of their employment authorization based on this category.

IV. Discussion of Proposed Rule

A. Discretionary Employment Authorization Generally

DHS is proposing to revise several provisions in title 8 of the CFR to emphasize and clarify how DHS will exercise its inherent discretionary authority to grant employment authorization.

Many immigration benefits require an alien to demonstrate that the request warrants a favorable exercise of discretion in order to receive the benefit. 134 For these benefits, a discretionary analysis is a separate, additional component of adjudicating the benefit request. An immigration officer typically determines whether to favorably exercise discretion after first determining that the alien meets all applicable threshold eligibility requirements.

134 See, e.g., Matter of Patel, 17 I&N Dec. 597 (BIA 1980) (discussing discretionary aspect of adjustment of status adjudications).

The discretionary analysis involves the review of all relevant, specific facts and circumstances in an individual case. However, there are limitations on how the officer may exercise discretion; the officer may not exercise discretion arbitrarily, inconsistently, or in reliance on biases or assumptions.

In some contexts, there are regulations and case law that outline certain factors that officers must review and use as a guide in making a discretionary determination. 135 However, there is no exhaustive list of factors that officers must consider when determining whether an alien warrants a favorable exercise of discretion with respect to employment authorization. To perform a discretionary analysis, officers must weigh all positive factors present in a particular case against any negative factors in the totality of the record. The analysis must be comprehensive, specific to the case, and based on all relevant facts known at the time of adjudication. 136

135 See USCIS, “Policy Manual,” Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 8, Discretionary Analysis, FN 47, https://www.uscis.gov/policy-manual/volume-1-part-e-chapter-8.

136 See USCIS, “Policy Manual,” Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 8, Discretionary Analysis, https://www.uscis.gov/policy-manual/volume-1-part-e-chapter-8.

As described in Section II.B, “Legal Authority,” the Secretary's authority to establish discretionary employment authorization categories and the eligibility criteria for aliens to be granted employment authorization exists in the Secretary's general authority, among other provisions, under section 103(a) of the INA, 8 U.S.C. 1103(a) and section 274A(h)(3) of the INA, 8 U.S.C. 1324a(h)(3).

Accordingly, as part of this proposed rule, DHS is proposing to amend 8 CFR part 274a to clarify how DHS will exercise its discretionary authority as it relates to employment authorization. The amendments to 8 CFR part 274a, discussed in further detail below, would also codify requirements for aliens who are applying for initial and renewal employment authorization under 8 CFR 274a.12(c) to submit biometrics at an ASC and pay the associated biometric services fee, as applicable. As noted above, however, the Asylum EAD Reform Rule proposes to amend DHS's discretion as it relates to (c)(8) EADs.

The amendments to 8 CFR part 274a would also generally codify DHS's existing practice of establishing validity periods for employment authorization and DHS's authority to apply discretion when considering a grant of employment authorization for applications filed under 8 CFR 274a.12(c), except for the employment eligibility categories that have otherwise been addressed via statute 137 or specific regulation. 138 See proposed 8 CFR 274a.12(c), 274a.13(a)(1)(iv), and 274a.13(b).

137 See INA 244(a)(1)(B), 8 U.S.C. 1254a(a)(1)(B) ((c)(19)); INA 210(d)(2)(B), 8 U.S.C. 1160(d)(2)(B) ((c)(20)); INA 245A(e), 8 U.S.C. 1255a(e) ((c)(22)); Legal Immigration Family Equity Act (LIFE Act), Public Law 106-553, Sec. 1104(c)(3)(C), 114 Stat. 2762, 2762A-148 ((c)(24)).

138 For example, the regulations have long excepted and continue to except (c)(8) EADs from discretionary considerations. 8 CFR 274a.13(a)(1).

DHS is proposing to clarify that USCIS will generally not approve an application for initial or renewal of employment authorization, unless DHS has determined there are significant countervailing public interests, which may include assisting law enforcement activity in the United States, if (1) the alien: has been arrested for, charged with (without disposition), indicted for, or has been convicted of, any criminal act; or (2) the alien admits to committing a violent or dangerous crime, even if he or she has never been formally arrested, charged, indicted or convicted; or (3) there is evidence of the alien's membership in a gang or terrorist organization. See proposed 8 CFR 274a.13(a)(1)(iv). DHS emphasizes that these discretionary factors apply to all categories of employment authorized under 8 CFR 274a.12(c) (other than (8), (19), (20), (22), and (24)), including aliens granted deferred action based on Deferred Action for Childhood Arrivals (DACA), a bona fide T nonimmigrant status application [which will be adjudicated consistent with 22 U.S.C. 7101(b)(19)] or U nonimmigrant status petition, or a waitlisted U nonimmigrant status petition).

By eliminating, with one limited exception, discretionary employment authorization for aliens for whom there exists evidence of membership in a gang or terrorist organization, DHS is creating a disincentive for aliens to affiliate themselves with gangs and terrorist organizations and conforming its regulations with Administration priorities. DHS hopes this disincentive will be especially effective for aliens who intend to apply for employment authorization by imposing serious consequences on those who may otherwise affiliate themselves with groups that wish to harm the United States. When reviewing the available evidence, DHS will apply a multi-factor approach that takes into consideration all evidence and relevant factors (for example, and this list is by no means exhaustive, tattoos, clothing, and evidence including pictures or statements which indicate the alien has adopted a group identity used to intimidate or create fear) rather than applying any bright line rules. Pertinent evidence will change over time as gangs and terrorist organizations adopt new markers, tactics, and means of operating. Grants of employment

DHS notes that generally declining to grant employment authorization to aliens for whom there is evidence of membership in a gang or terrorist organization is consistent with the Administration's priorities of combating terrorism and the harms inflicted by gangs. E.O. 14159, Protecting the American People Against Invasion, recognized the importance of “end[ing] the presence of criminal cartels, foreign gangs, and transnational criminal organizations throughout the United States.” 139 E.O. 14161 announced the Administration's goal “to protect its citizens from aliens who intend to commit terrorist attacks, threaten our national security, espouse hateful ideology, or otherwise exploit the immigration laws for malevolent purposes.” 140 The E.O. further announces the objective of “ensur[ing] that admitted aliens and aliens otherwise already present in the United States do not bear hostile attitudes toward its citizens, culture, government, institutions, or founding principles, and do not advocate for, aid, or support designated foreign terrorists or other threats to our national security.” By not granting employment authorization to those with ties or other evidence of membership in a gang or terrorist organization, the Department is conforming its regulations and practices to the stated policies of the Administration.

139 90 FR 8443.

140 90 FR 8451.

Additionally, regarding victims of serious crimes or severe forms of trafficking in persons, DHS has considered that some aliens will not receive a favorable decision on their discretionary employment authorization even though the alien is or will be deemed a bona fide applicant or petitioner, may be placed on the U visa waiting list, may receive a waiver of inadmissibility based on the same crime or crimes that rendered them ineligible for discretionary work authorization, and may ultimately have their victim-based petition or application approved despite the aforementioned crime or crimes. DHS has determined that, for consistency, all discretionary employment authorizations should generally be considered under the same analytical framework, as described elsewhere in this preamble. Accordingly, it is not necessary to provide any exceptions or exemptions for these populations because all populations should, generally, be considered equally in the presence of negative discretionary factors, per the Administration's priorities. Further, while this proposed rule would expand or revise some of the factors that must be considered within discretionary analysis prior to granting employment authorization, DHS already conducts discretionary analysis, including a review of national and public safety concerns, prior to issuing work authorization for these categories. For example, under current policy, DHS generally declines to exercise its discretion to grant work authorization and deferred action to a pending principal U nonimmigrant petitioner, or his or her qualifying family member, who has been convicted of, or arrested for, a crime or crimes that indicate a risk to public safety or national security and would generally render the alien inadmissible. Consistent with DHS's discretionary authority, this proposed rule simply builds on the current requirements and confirms DHS's decision not to provide work authorization to aliens who pose a potential or c

This text is long and has been trimmed here. Open the source document for the complete record.