[Federal Register Volume 87, Number 86 (Wednesday, May 4, 2022)]
[Rules and Regulations]
[Pages 26614-26652]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-09539]



[[Page 26613]]

Vol. 87

Wednesday,

No. 86

May 4, 2022

Part V





Department of Homeland Security





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8 CFR Part 274a





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

  Federal Register / Vol. 87 , No. 86 / Wednesday, May 4, 2022 / Rules 
and Regulations  

[[Page 26614]]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 274a

[CIS No. 2714-22; DHS Docket No. USCIS-2022-0002]
RIN 1615-AC78


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

AGENCY: U.S. Citizenship and Immigration Services, DHS.

ACTION: Temporary final rule with request for comments.

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SUMMARY: This rule temporarily amends existing Department of Homeland 
Security (DHS) regulations to provide that the automatic extension 
period applicable to expiring Employment Authorization Documents (Forms 
I-766 or EADs) for certain renewal applicants who have filed Form I-
765, Application for Employment Authorization, will be increased from 
up to 180 days to up to 540 days from the expiration date stated on 
their EADs. This increase will be available to eligible renewal 
applicants with pending Forms I-765 as of May 4, 2022, including those 
applicants whose employment authorization may have lapsed following the 
initial 180-day extension period, and any eligible applicant who files 
a renewal Form I-765 during the 540-day period beginning on or after 
May 4, 2022, and ending October 26, 2023. In light of current 
processing times for Forms I-765, DHS is taking these steps to help 
prevent renewal applicants from experiencing a lapse in employment 
authorization and/or documentation while their applications remain 
pending and solutions are implemented to return processing times to 
normal levels.

DATES: 
    Effective date: This temporary final rule is effective May 4, 2022, 
through October 15, 2025.
    Submission of public comments: Written comments must be submitted 
on or before July 5, 2022. The electronic Federal Docket Management 
System will accept comments prior to midnight eastern time at the end 
of that day.

ADDRESSES: You may submit comments on the entirety of this temporary 
final rule package, identified by DHS Docket No. USCIS-2022-0002, 
through the Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the website instructions for submitting comments.
    Comments submitted in a manner other than the one listed above, 
including emails or letters sent to USCIS or DHS officials, will not be 
considered comments on the temporary final rule and may not receive a 
response. Please note that USCIS cannot accept any comments that are 
hand-delivered or couriered. In addition, USCIS cannot accept comments 
contained on any form of digital media storage devices, such as CDs/
DVDs and USB drives. USCIS is not accepting mailed comments at this 
time. If you cannot submit your comment by using https://www.regulations.gov, please contact Samantha Deshommes, Chief, 
Regulatory Coordination Division, Office of Policy and Strategy, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
by telephone at 240-721-3000 (not a toll-free call) for alternate 
instructions.

FOR FURTHER INFORMATION CONTACT: Melissa Lin, Branch Chief, Policy 
Development and Coordination Division, Office of Policy and Strategy, 
U.S. Citizenship and Immigration Services, Department of Homeland 
Security, 5900 Capital Gateway Drive, Camp Springs, MD 20746; telephone 
240-721-3000 (not a toll-free call).
    Individuals with hearing or speech impairments may access the 
telephone numbers above via TTY by calling the toll-free Federal 
Information Relay Service at 1-877-889-5627 (TTY/TDD).

SUPPLEMENTARY INFORMATION: 

I. Public Participation

    DHS invites you to participate in this rulemaking by submitting 
written data, views, or arguments on all aspects of this temporary 
final rule. Comments providing the most assistance to DHS will 
reference a specific provision of the temporary final rule, explain the 
reason for any recommended change, and include data, information, or 
authority that supports the recommended change. Comments submitted in a 
manner other than explicitly provided above, including emails or 
letters sent to USCIS or DHS officials, will not be considered comments 
on the temporary final rule and may not receive a response.
    Instructions: All submissions should include the agency name and 
DHS Docket No. USCIS-2022-0002 for this rulemaking. Providing comments 
is entirely voluntary. DHS will post all submissions, without change, 
to the Federal eRulemaking Portal at https://www.regulations.gov and 
will include any personal information you provide. Because the 
information you submit will be publicly available, you should consider 
limiting the amount of personal information in your submission. DHS may 
withhold information provided in comments from public viewing if it 
determines that such information is offensive or may affect the privacy 
of an individual. For additional information, please read the Privacy 
Act notice available through the link in the footer of https://www.regulations.gov.
    Docket: For access to the docket and to read comments received, go 
to https://www.regulations.gov, referencing DHS Docket No. USCIS-2022-
0002. You may also sign up for email alerts on the online docket to be 
notified when comments are posted or subsequent rulemaking is 
published.

II. Background

    Operational challenges, exacerbated by the emergency measures USCIS 
employed to maintain its operations through the height of the COVID-19 
pandemic in 2020, which greatly affected operations and staffing, 
combined with a sudden increase in Form I-765 filings, have resulted in 
processing times for Form I-765 increasing to such a level that the 
180-day automatic extension period for Form I-765 renewal applicants' 
employment authorization and/or EADs is temporarily insufficient. For 
some applicants, the extension has already expired, while for many 
others, it is in imminent danger of expiring. As a result, renewal 
applicants are losing their jobs and employers suddenly are faced with 
finding replacement workers during a time when the U.S. economy is 
experiencing more job openings than available workers.\1\ DHS has 
determined that it is imperative to immediately increase the automatic 
extension period of employment authorization and/or EADs for eligible 
Form I-765 renewal applicants for a temporary period. This temporary 
increase to the automatic extension period will avoid the immediate 
harm that otherwise would affect tens of thousands of EAD renewal 
applicants and their U.S. employers in those cases where USCIS is 
unable to process applicants' EAD renewal applications before the end 
of the current 180-day automatic extension period. USCIS is already 
taking steps to more permanently address its backlogs for EAD 
applications and other form types, and this temporary increase will 
provide a temporary extension while

[[Page 26615]]

USCIS works to return to pre-pandemic processing times.
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    \1\ Bureau of Labor Statistics data show that, as of December 
2021, there were 0.6 unemployed persons per job opening. U.S. 
Department of Labor, U.S. Bureau of Labor Statistics, Number of 
unemployed persons per job opening, seasonally adjusted (Jan. 2007 
through Jan. 2022), https://www.bls.gov/charts/job-openings-and-labor-turnover/unemp-per-job-opening.htm (last visited Mar. 14, 
2022).
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A. Legal Authority

    The Secretary of Homeland Security's (Secretary) authority for the 
regulatory amendments made in this TFR are found in: section 
274A(h)(3)(B) of the Immigration and Nationality Act (INA), 8 U.S.C. 
1324a(h)(3)(B), which recognizes the Secretary's authority to extend 
employment authorization to noncitizens in the United States; and 
section 101(b)(1)(F) of the Homeland Security Act, 6 U.S.C. 
111(b)(1)(F), which establishes as a primary mission of DHS the duty to 
``ensure that the overall economic security of the United States is not 
diminished by efforts, activities, and programs aimed at securing the 
homeland.'' In addition, section 103(a)(3) of the INA, 8 U.S.C. 
1103(a)(3), authorizes the Secretary to establish such regulations as 
the Secretary deems necessary for carrying out the Secretary's 
authority under the INA, and section 214 of the INA, 8 U.S.C. 1184, 
including section 214(a)(1), 8 U.S.C. 1184(a)(1), authorizes the 
Secretary to prescribe, by regulation, the terms and conditions of the 
admission of nonimmigrants.

B. Legal Framework for Employment Authorization

1. Types of Employment Authorization: 8 CFR 274a.12(a), (b), and (c)
    Whether or not a noncitizen is authorized to work in the United 
States depends on the noncitizen's immigration status or other 
conditions that may permit employment authorization (for example, 
having a pending application for asylum or a grant of deferred action). 
DHS regulations outline three classes of noncitizens who may be 
eligible for employment in the United States, as follows: \2\
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    \2\ There are several employment-eligible categories that are 
not included in DHS regulations but instead are described in the 
form instructions to Form I-765, Application for Employment 
Authorization. Employment-authorized L nonimmigrant spouses are an 
example. See INA sec. 214(c)(2)(E), 8 U.S.C. 1184(c)(2)(E).
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     Noncitizens in the first class, described at 8 CFR 
274a.12(a), are authorized to work ``incident to status'' for any 
employer, as well as to engage in self-employment, as a condition of 
their immigration status or circumstances. Although authorized to work 
as a condition of their status or circumstances, certain classes of 
noncitizens must apply to USCIS in order to receive a Form I-766 EAD as 
evidence of that employment authorization; \3\
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    \3\ See 8 CFR 274a.12(a).
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     Noncitizens in the second class, described at 8 CFR 
274a.12(b), also are authorized to work ``incident to status'' as a 
condition of their immigration status or circumstances, but generally 
the authorization is valid only for a ``specific employer;'' \4\ and
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    \4\ See 8 CFR 274a.12(b).These noncitizens are issued an 
Arrival-Departure Record (Form I-94) indicating their employment-
authorized status in the United States and do not file separate 
requests for evidence of employment authorization.
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     Noncitizens in the third class, described at 8 CFR 
247a.12(c), are required to apply for employment authorization and may 
work only if USCIS approves their application. Therefore, they are 
authorized to work for any employer, as well as to engage in self-
employment, upon approval, in the discretion of USCIS, of Form I-765, 
Application for Employment Authorization, so long as their EAD remains 
valid.\5\
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    \5\ See 8 CFR 274a.12(c); Matter of Tong, 16 I&N Dec. 593, 595 
(BIA 1978) (holding that the term ``employment'' is a common one, 
generally used with relation to the most common pursuits,'' and 
includes ``the act of being employed for one's self'').
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2. The Application Process for Obtaining Employment Authorization and 
EADs: 8 CFR 274a.13(a)
    For certain eligibility categories listed in 8 CFR 274a.12(a) (the 
first class) and all eligibility categories listed in 8 CFR 274a.12(c) 
(the third class), as well as additional categories specified in form 
instructions, an Application for Employment Authorization (Form I-765) 
must be properly filed with USCIS (with fee or fee waiver as 
applicable) to receive employment authorization and/or the Form I-766 
EAD.\6\ If granted, such employment authorization and EADs allow 
noncitizens to work for any U.S. employer or engage in self-employment, 
as applicable. Certain noncitizens may file Form I-765 concurrently 
with a related benefit request if permitted by the form instructions or 
as announced by USCIS.\7\ In some instances, the underlying benefit 
request, if granted, would form the basis for eligibility for 
employment authorization.
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    \6\ See 8 CFR 103.2(a) and 8 CFR 274a.13(a). Applicants who are 
employment authorized incident to status (e.g., asylees, refugees, 
TPS beneficiaries) will file Form I-765 to request a Form I-766 EAD. 
Applicants who are filing within an eligibility category listed in 8 
CFR 274a.12(c) must use Form I-765 to request both employment 
authorization and an EAD.
    \7\ See 8 CFR 274a.13(a).
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    For eligibility categories listed in 8 CFR 274a.12(a) and (c), 
USCIS has the discretion to establish a specific validity period for 
the EAD.\8\
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    \8\ See 8 CFR 274.12(a) and (c).
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3. Automatic Extensions of EADs for Renewal Applicants: 8 CFR 
274a.13(d)
a. Renewing Employment Authorization and/or EADs
    EADs are not valid indefinitely, but instead expire after a 
specified period of time.\9\ Noncitizens within eligibility categories 
listed in 8 CFR 274a.12(c) must obtain a renewal of employment 
authorization and their EAD before the expiration date stated on the 
current EAD, or the noncitizen will lose the eligibility to work in the 
United States unless the noncitizen has obtained an immigration status 
or belongs to a class of individuals with employment authorization 
incident to that status (or class) since obtaining a current EAD. The 
same holds true for some classes of noncitizens authorized to work 
incident to status whose EADs' expiration dates coincide with the 
termination or expiration of their underlying immigration status. Other 
noncitizens authorized to work incident to status, such as asylees, 
refugees, and Temporary Protected Status (TPS) beneficiaries, may have 
immigration status that confers employment authorization that continues 
past the expiration date stated on their EADs. Nevertheless, such 
individuals may wish to renew their EAD in order to have valid evidence 
of their continuous employment authorization for various purposes, such 
as presenting evidence of employment authorization and identity to 
their employers for completion of the Employment Eligibility 
Verification (Form I-9), or to obtain benefits such as a driver's 
license from a State motor vehicle agency.\10\ Failure to renew their 
EADs prior to the expiration date may result in job loss if such 
individuals do not have or cannot present alternate evidence of 
employment authorization, as employers who continue to employ 
individuals without employment

[[Page 26616]]

authorization may be subject to civil money penalties.\11\
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    \9\ See 8 CFR 274a.13(b) and 274a.14(a).
    \10\ For example, the status of asylees generally continues 
unless and until it is adjusted to lawful permanent resident status, 
and asylees are employment authorized incident to status. Therefore, 
asylees' employment authorization typically will continue beyond the 
expiration date on the EAD, which is issued in 2-year increments. On 
the other hand, a K-1 fianc[eacute]e, while also employment 
authorized incident to status, will receive only a 90-day period in 
K-1 nonimmigrant status upon admission to the United States. The 
expiration date of EADs issued to K-1 fianc[eacute]es will coincide 
with the 90-day admission period.
    \11\ For an initial hire, the employee must present the employer 
with acceptable documents evidencing identity and employment 
authorization. The lists of acceptable documents can be found on the 
last page of the Form I-9. See https://www.uscis.gov/sites/default/files/document/forms/i-9.pdf (last updated Oct. 21, 2019). An 
employer that does not properly complete Form I-9, which includes 
reverifying continued employment authorization, or continues to 
employ an individual with knowledge that the individual is not 
authorized to work may be subject to civil money penalties. See 
https://www.uscis.gov/i-9-central/handbook-for-employers-m-274/100-
unlawful-discrimination-and-penalties-for-prohibited-practices/108-
penalties-for-prohibited-practices (last updated Apr. 27, 2020).
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    Those seeking to renew previously granted employment authorization 
and/or EADs must file the renewal request on Form I-765 with USCIS in 
accordance with the form instructions.\12\
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    \12\ See https://www.uscis.gov/sites/default/files/document/forms/i-765instr.pdf (08/25/20 edition). In reviewing the Form I-
765, USCIS ensures that the fee was paid, a fee waiver was granted, 
or a fee exemption applies.
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Module A. b. Minimizing the Risk of Gaps in Employment Authorization 
and/or EAD Validity Through Automatic Extensions
    If an eligible noncitizen is not able to renew their employment 
authorization and/or EAD before it expires, the noncitizen and the 
employer may experience adverse consequences. For the noncitizen, the 
lack of renewal could cause job loss, gaps in employment authorization, 
and loss of income to the noncitizen and their family member(s). For 
the noncitizen's employer, the disruption may cause instability with 
business continuity or other financial harm. Beyond the financial and 
economic impact that gaps in employment create for the employer and the 
noncitizen, if the noncitizen engages in unauthorized employment, such 
activity may render a noncitizen removable,\13\ render a noncitizen 
ineligible for future benefits such as adjustment of status,\14\ and/or 
may subject the employer to civil and criminal penalties.\15\
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    \13\ See, e.g., INA sec. 237(a)(1)(C), 8 U.S.C. 1227(a)(1)(C).
    \14\ See INA sec. 245(c), 8 U.S.C. 1255(c).
    \15\ See INA sec. 274A, 8 U.S.C. 1324a.
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    Before 2016, USCIS regulations indicated that USCIS would 
``adjudicate an application [for an EAD] within 90 days'' from the date 
USCIS received the application.\16\ If USCIS did not adjudicate the 
application within that timeframe, the applicant was eligible to be 
issued an interim document evidencing employment authorization with a 
validity period not to exceed 240 days. On November 18, 2016, as part 
of DHS's efforts to implement the flexibilities provided to noncitizens 
and employers by the American Competitiveness in the Twenty-first 
Century Act of 2000 (AC21), as amended, and the American 
Competitiveness and Workforce Improvement Act of 1998, DHS published a 
final regulation \17\ removing the provision and replacing it with the 
current 8 CFR 274a.13(d).
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    \16\ See 8 CFR 274a.13(d) (2016).
    \17\ See Final Rule, Retention of EB-1, EB-2, and EB-3 Immigrant 
Workers and Program Improvements Affecting High-Skilled Nonimmigrant 
Workers, 81 FR 82398 (Nov. 18, 2016) (``AC21 Final Rule''). The 
final rule was issued after a proposed rule was published in the 
Federal Register. See Notice of Proposed Rulemaking, Retention of 
EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements 
Affecting High-Skilled Nonimmigrant Workers, 80 FR 81899 (Dec. 31, 
2015) (``AC21 NPRM'').
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    Under the current provision, certain employment eligibility 
categories receive an automatic extension of employment authorization 
and EAD for up to 180 days if certain conditions (outlined below) are 
met.\18\ DHS created the provision to prevent gaps in employment 
authorization and related consequences for certain renewal 
applicants,\19\ and in light of processing times and possible filing 
surges.\20\ To significantly mitigate the risks of and consequences 
related to gaps in employment authorization for renewal applicants, DHS 
changed its regulations at 8 CFR 274a.13(d) to provide certain 
categories of renewal applicants with an automatic extension of their 
EADs and, if applicable, related employment authorization, for up to 
180 days from the expiration date on the EAD if:
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    \18\ See 81 FR at 82455-82463 (AC21 Final Rule).
    \19\ See 80 FR at 81927 (``DHS proposes to amend its regulations 
to help prevent gaps in employment authorization for certain 
employment-authorized individuals who are seeking to renew expiring 
EADs. . . . These provisions would significantly mitigate the risk 
of gaps in employment authorization and required documentation for 
eligible individuals, thereby benefitting them and their 
employers.'').
    \20\ See 80 FR at 81927 (``DHS believes that this time period 
[of up to 180 days] is reasonable and provides more than ample time 
for USCIS to complete the adjudication process based on USCIS's 
current 3-month average processing time for Applications for 
Employment Authorization.''); id. at 81927 n.77 (``Depending on any 
significant surges in filings, however, there may be periods in 
which USCIS takes longer than 2 weeks to issue Notices of Action 
(Forms I-797C).'').
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     The renewal applicants timely file an application to renew 
their employment authorization and/or EAD on Form I-765 before the EAD 
expires; \21\
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    \21\ 8 CFR 274a.13(d)(1)(i). TPS beneficiaries must file during 
the designated period in the applicable Federal Register notice. In 
addition, the TPS and TPS-related documentation, including EADs, of 
certain TPS beneficiaries under the TPS designations for Haiti, El 
Salvador, Sudan, Nicaragua, Honduras, and Nepal are continued 
subject to current court orders and litigation compliance Federal 
Register notices. See 86 FR 50725 (Sept. 10, 2021) (continuing TPS 
and TPS-related documentation for eligible beneficiaries of the TPS 
designations for the noted six countries through December 31, 2022, 
and further noting that DHS will issue future such notices as 
necessary to comply with court orders in Ramos, et al. v. Nielsen, 
et al., No. 18-cv-01554 (N.D. Cal. Oct. 3, 2018) (``Ramos''); Saget, 
et al. v. Trump, et al., No. 18-cv-1599 (E.D.N.Y. Apr. 11, 2019) 
(``Saget''); and Bhattarai v. Nielsen, No. 19-cv-00731 (N.D. Cal. 
Mar. 12, 2019) (``Bhattarai''). DHS also will comply with any 
superseding court orders in these lawsuits. This TFR will be 
construed in harmony, to the extent possible, with the existing and 
any future court orders in this referenced litigation.
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     The renewal Form I-765 is based on the same employment 
authorization category on the front of the expiring EAD or is for an 
individual approved for TPS whose EAD was issued pursuant to 8 CFR 
274a.12(c)(19); \22\ and
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    \22\ See 8 CFR 274a.13(d)(1)(ii) (exempting individuals approved 
for TPS with EADs issued pursuant to 8 CFR 274a.12(c)(19) from the 
requirement that the employment authorization category on the face 
of the expiring EAD be the same as on the request for renewal (Form 
I-765)). See also DHS, USCIS, Employment Authorization for Certain 
H-4, E, and L Nonimmigrant Dependent Spouses, PA-2021-25 (Nov. 12, 
2021), https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20211112-EmploymentAuthorization.pdf (explaining that 
certain H-4, E, or L dependent spouses may submit a document 
combination including an unexpired Form I-94 indicating H-4, E, or 
L-2 nonimmigrant status alongside Form I-797C).
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     The noncitizen's eligibility to apply for employment 
authorization continues notwithstanding the expiration of the EAD and 
is based on an employment authorization category that does not require 
the adjudication of an underlying application or petition before the 
adjudication of the renewal application, as announced on the USCIS 
website.\23\
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    \23\ See 8 CFR 274a.13(d)(iii).
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    The following classes of noncitizens filing to renew an EAD may be 
eligible to receive an automatic extension of their employment 
authorization and/or EAD for up to 180 days, which USCIS discusses in 
detail at https://www.uscis.gov/eadautoextend: \24\
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    \24\ See DHS, USCIS, Automatic Employment Authorization Document 
(EAD) Extension, https://www.uscis.gov/eadautoextend (last updated 
Nov. 12, 2021).
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     Noncitizens admitted as refugees (A03).\25\
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    \25\ See 8 CFR 274a.12(a)(3).
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     Noncitizens granted asylum (A05).\26\
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    \26\ See 8 CFR 274a.12(a)(5).
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     Noncitizens admitted as parents or dependent children of 
noncitizens granted permanent residence under section 101(a)(27)(I) of 
the INA, 8 U.S.C. 1101(a)(27)(I) (A07).\27\
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    \27\ See 8 CFR 274a.12(a)(7).
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     Noncitizens admitted to the United States as citizens of 
the Federated States

[[Page 26617]]

of Micronesia or the Marshall Islands pursuant to agreements between 
the United States and the former trust territories (A08).\28\
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    \28\ See 8 CFR 274a.12(a)(8).
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     Noncitizens granted withholding of deportation or removal 
(A10).\29\
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    \29\ See 8 CFR 274a.12(a)(10).
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     Noncitizens granted TPS, regardless of the employment 
authorization category on their current EADs (A12 or C19).\30\
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    \30\ See 8 CFR 274a.12(a)(12) or (c)(19).
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     Noncitizen spouses of E-1/2/3 nonimmigrants (Treaty 
Trader/Investor/Australian Specialty Worker) (A17).\31\
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    \31\ See INA sec. 214(e)(2), 8 U.S.C. 1184(e)(2).
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     Noncitizen spouses of L-1 nonimmigrants (Intracompany 
Transferees) (A18).\32\
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    \32\ See INA sec. 214(c)(2)(E), 8 U.S.C. 1184(c)(2)(E).
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     Noncitizens who have properly filed applications for TPS 
and who have been deemed prima facie eligible for TPS under 8 CFR 
244.10(a) and have received an EAD as a ``temporary treatment benefit'' 
under 8 CFR 244.10(e) and 274a.12(c)(19) (C19).\33\
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    \33\ See 8 CFR 274a.12(c)(19).
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     Noncitizens who have properly filed applications for 
asylum and withholding of deportation or removal (C08).\34\
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    \34\ See 8 CFR 274a.12(c)(8).
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     Noncitizens who have filed applications for adjustment of 
status to lawful permanent resident under section 245 of the INA, 8 
U.S.C. 1255 (C09).\35\
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    \35\ See 8 CFR 274a.12(c)(9).
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     Noncitizens who have filed applications for suspension of 
deportation under section 244 of the INA (as it existed prior to April 
1, 1997), cancellation of removal pursuant to section 240A of the INA, 
or special rule cancellation of removal under section 309(f)(1) of the 
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 
(C10).\36\
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    \36\ See 8 CFR 274a.12(c)(10).
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     Noncitizens who have filed applications for creation of 
record of lawful admission for permanent residence (C16).\37\
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    \37\ See 8 CFR 274a.12(c)(16).
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     Noncitizens who have properly filed legalization 
applications pursuant to section 210 of the INA, 8 U.S.C. 1160 
(C20).\38\
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    \38\ See 8 CFR 274a.12(c)(20).
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     Noncitizens who have properly filed legalization 
applications pursuant to section 245A of the INA, 8 U.S.C. 1255a 
(C22).\39\
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    \39\ See 8 CFR 274a.12(c)(22).
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     Noncitizens who have filed applications for adjustment of 
status pursuant to section 1104 of the Legal Immigration Family Equity 
Act (C24).\40\
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    \40\ See 8 CFR 274a.12(c)(24).
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     Noncitizen spouses (H-4) of H-1B nonimmigrants with an 
unexpired Form I-94 showing H-4 nonimmigrant status (C26).\41\
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    \41\ See 8 CFR 274a.12(c)(26).
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     Noncitizens who are the principal beneficiaries or 
qualified children of approved VAWA self-petitioners, under the 
employment authorization category ``(c)(31)'' in the form instructions 
to Form I-765 (C31).
    Currently, the extension automatically terminates the earlier of up 
to 180 days after the expiration date of the EAD, or upon issuance of 
notification of a decision denying the renewal request.\42\ An EAD that 
has expired on its face is considered unexpired when combined with a 
Form I-797C indicating a timely filing of the application to renew the 
EAD.\43\ Therefore, when the expiration date on the front of the EAD is 
reached, a noncitizen who is continuing in their employment with the 
same employer and relying on their extended EAD to show their 
employment authorization must present to the employer the Form I-797C 
to show continued employment authorization, and the employer must 
update the previously completed Form I-9 to reflect the extended 
expiration date based on the automatic extension while the renewal is 
pending. For new employment, the automatic extension date is recorded 
on the Form I-9 by the employee (if applicable) and employer in the 
first instance. In either case, the reverification of employment 
authorization or the EAD occurs when the automatic extension period 
terminates.\44\
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    \42\ See 8 CFR 274a.13(d)(3).
    \43\ See 8 CFR 274a.13(d)(4).
    \44\ See DHS, USCIS, Completing Section 3, Reverification and 
Rehires, https://www.uscis.gov/i-9-central/complete-correct-form-i-
9/completing-section-3-reverification-and-rehires (last updated July 
10, 2020).
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    USCIS policy generally permits the filing of a Form I-765 renewal 
application up to 180 days before the current EAD expires.\45\ If the 
renewal application is granted, the employment authorization and/or EAD 
generally will be valid as of the date of approval of the application. 
If the application is denied, the employment authorization and/or EAD 
generally is terminated on the day of the denial.\46\ If the renewal 
application was timely and properly filed but remains pending beyond 
the 180-day automatic extension period and the employee cannot provide 
other evidence of current employment authorization, the employee must 
stop working on the beginning of the 181st day after the expiration of 
the EAD, and the employer must remove the employee from the 
payroll.\47\ As a result, both the employee and the employer will 
experience the negative consequences of gaps in employment 
authorization and/or EAD validity. Since its promulgation in 2016, the 
automatic extension provision at 8 CFR 274a.13(d) has helped to 
minimize the risk of these negative consequences for applicants who are 
otherwise eligible for the automatic extension and their employers.
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    \45\ See USCIS' web page at https://www.uscis.gov/green-card/green-card-processes-and-procedures/employment-authorization-document (last updated Feb. 11, 2022); see also 81 FR at 82456 (AC21 
Final Rule).
    \46\ See 8 CFR 274a.13(d)(3).
    \47\ See 8 CFR 274a.2(b)(vii) (reverification provision).
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    Recently, however, it has become apparent that the 180-day 
automatic extension is not enough for a growing number of renewal 
applicants. Thousands of renewal applications remain pending beyond the 
180-day automatic extension period resulting in applicants losing 
employment authorization and/or EAD validity. The grave situation that 
applicants and, in turn, their employers are facing generally is not 
the result of the applicant's actions, but instead the result of 
several converging factors affecting USCIS operations that have been 
compounded by the COVID-19 public health emergency. These factors 
resulted in a significant increase in USCIS processing times for 
several categories of Form I-765 renewal applications, as described in 
detail below. DHS has determined that the 180-day automatic extension 
provision is currently insufficient to protect applicants as was 
originally intended.

III. Purpose of This Temporary Final Rule

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

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

[[Page 26618]]

Directorate beginning February 2020.\48\ Those backlogs in other 
program areas strained USCIS resources, which, when coupled with USCIS' 
worsening fiscal situation beginning in late 2019 and continuing into 
2020 and part of 2021, hindered USCIS' ability to allocate resources to 
respond to the increase in Form I-765 filings in a manner that would 
allow USCIS to continue to meet its 3-month internal processing goal as 
it historically had. Additionally, strain on USCIS' financial 
resources, which was due in part to USCIS' inability to update its fee 
structure since 2016, negatively affected staffing levels and hampered 
the ability to quickly respond to shifting workload demands. The COVID-
19 pandemic exacerbated USCIS' precarious fiscal situation, deepening 
its fiscal emergency. The pandemic also led to new and significant 
operational disruptions, reversing any gains the agency had made on 
existing backlogs; \49\ these pandemic-related disruptions impacted 
adjudications of immigration benefit requests as well as the pipeline 
of work for which all required pre-adjudicative processing was 
completed (making forms ``adjudication-ready''), including for Form I-
765 adjudications.\50\ In 2021, before USCIS could recover from these 
fiscal and operational impacts, USCIS experienced a sudden and dramatic 
increase in Form I-765 filings due to: Increased filings in the C09 
(pending adjustment) category generally caused by changes in 
employment-based visa availability, new Temporary Protective Status 
(TPS) designations and redesignations, and the cyclical nature of the 
C08 (pending asylum) and C33 (DACA) categories. USCIS has experienced 
significant Form I-765 backlogs since then.
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    \48\ A U.S. Government Accountability Office report observed 
that despite receipts remaining steady (between 8 million and 10 
million) from fiscal year (FY) 2015 through FY 2019, USCIS' 
processing times increased through FY 2020, and the overall pending 
caseload grew an estimated 85 percent, with USCIS having received 
more than 4 million applications and petitions in the first two 
quarters of FY 2020, owing to the factors listed above. Factors that 
affected Form I-765, specifically, will be discussed in further 
detail below. See GAO-21-529, U.S. Citizenship and Immigration 
Services: Actions Needed to Address Pending Caseload (Aug. 2021), 
pp. 9, 12, 14, and 20, https://www.gao.gov/assets/gao-21-529.pdf. 
The hiring freezes that began in the Field Operations and Service 
Center Operations Directorates were eventually subsumed by an 
agency-wide hiring freeze beginning May 1, 2020, which is discussed 
in further detail below. USCIS lifted the agency-wide hiring freeze 
in March 2021.
    \49\ USCIS had made some progress in addressing these backlogs 
before the COVID-19 pandemic. In FY 2019, USCIS observed a backlog 
growth rate of less than 1 percent--the smallest growth in backlogs 
since 2012. This was due to a 4-percent decrease in receipts, 
increases in completions (naturalizations, adjustments of status, 
and nonimmigrant and immigrant worker petitions), and additional 
staffing. However, the COVID-19 pandemic reversed any gains USCIS 
had made.
    \50\ Other contributing factors include competing priorities, 
such as litigation obligations and administration priorities, that 
shifted resources away from Form I-765 adjudications or caused the 
agency to focus resources on certain categories or subcategories of 
Form I-765; and policy changes (such as expanding biometrics 
requirements to certain applicants filing Form I-539, Application to 
Extend/Change Nonimmigrant Status), which delayed USCIS' ability to 
approve any Form I-765 relying on an underlying Form I-539 decision. 
See GAO-21-529, U.S. Citizenship and Immigration Services: Actions 
Needed to Address Pending Caseload (Aug. 2021), pp. 15-20. However, 
these factors, while relevant, have been mitigated through recent 
policy changes and, therefore, are no longer a significant cause of 
gaps in employment authorization for applicants. For example, on May 
17, 2021, USCIS temporarily suspended the biometrics requirement for 
certain Form I-539 applicants to address the processing delays 
exacerbated by limited Application Support Center (ASC) capacity due 
to COVID-19. See USCIS News Alert, USCIS Temporarily Suspends 
Biometrics Requirement for Certain Form I-539 Applicants, https://www.uscis.gov/news/alerts/uscis-temporarily-suspends-biometrics-requirement-for-certain-form-i-539-applicants (last updated May 13, 
2021).
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    Presently, Form I-765 processing times vary, with many categories' 
processing times extending far beyond USCIS' 3-month processing goal 
for the form type. By December 2021, the median \51\ processing time 
for all initial and renewal Form I-765 applications was 6.5 months, and 
the median processing time for all Form I-765 renewal applications was 
5.4 months. For those renewal applicants within employment 
authorization categories eligible for the up to 180-day automatic 
extension of employment authorization provided by 8 CFR 274a.13(d), as 
of December 2021, USCIS' median processing time was 8.0 months.\52\ 
Given these processing times, DHS recognizes that approximately 87,000 
renewal applicants eligible for an automatic extension under 8 CFR 
274a.13(d)(1) are, or soon will be, past the 180-day automatic 
extension period of their employment authorization and/or EAD validity.
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    \51\ The median processing time represents the time it took to 
complete 50 percent of the cases completed in a given time period.
    \52\ The time it took USCIS to complete 93 percent of these 
cases was 11.4 months. For more information on how USCIS calculates 
its processing times, see USCIS' web page at https://egov.uscis.gov/processing-times/more-info (last visited Feb. 9, 2022).
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    The vast majority of applicants filing renewal Form I-765 
applications and who are eligible for the automatic extension of EADs 
under 8 CFR 274a.13(d) fall under three filing categories: (1) 
Noncitizens who have properly filed applications for asylum and 
withholding of deportation or removal (C08); (2) noncitizens who have 
properly filed applications for adjustment of status to lawful 
permanent resident under section 245 of the INA, 8 U.S.C. 1255 (C09); 
\53\ and (3) noncitizens who have properly filed applications for 
suspension of deportation under section 244 of the INA (as it existed 
prior to April 1, 1997), cancellation of removal pursuant to section 
240A of the INA, or special rule cancellation of removal under section 
309(f)(1) of the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996 (C10).\54\ As of December 2021, the 
processing time range (between median and 93rd percentile) for Form I-
765 renewal applications filed based on the C08 category was 10.1 to 
11.5 months; for the C09 category, 7.7 to 11.6 months; and for the C10 
category, 6.1 to 8.6 months. By comparison, this processing time range 
as of December 2020, for the C08 category, was 5.0 to 6.9 months; for 
the C09 category, 2.5 to 5.6 months; and for the C10 category, 3.2 to 
4.2 months.
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    \53\ Applicants filing a Form I-765 based on a pending LRIF-
based adjustment application also use ``(c)(9)'' as their 
eligibility category on Form I-765.
    \54\ In December 2021, these three filing categories made up 
nearly 95 percent of the renewal EAD receipts filed in categories 
eligible for the automatic extension of employment authorization. 
Broken down further among these three categories: The C08 category 
comprised approximately 58 percent of the renewal EAD receipts filed 
in categories eligible for the automatic extension, while the C09 
category comprised approximately 19 percent and the C10 comprised 
approximately 18 percent.
    \55\ In some cases, USCIS' data is based on its fiscal year, 
beginning on October 1 and ending on September 30 of the reporting 
period.

 Table 1--Recent Dramatic Growth in 50th and 93rd Percentile Processing
   Times for Form I-765 Renewal Applications Filed by Top Three Filing
                               Categories
------------------------------------------------------------------------
                                                           Suspension/
                      Pending asylum     Adjustment of     cancellation
  Fiscal year \55\   applicants (C08)       status          applicants
                                       applicants (C09)       (C10)
------------------------------------------------------------------------
2017...............  6.5 to 7.1        4.6 to 6.5        6.3 to 8.4
                      months.           months.           months.
2018...............  2.8 to 4.4        4.7 to 8.1        7.0 to 9.5
                      months.           months.           months.

[[Page 26619]]

 
2019...............  4.1 to 5.2        5.2 to 7.8        2.7 to 4.6
                      months.           months.           months.
2020...............  5.0 to 6.9        2.5 to 5.6        3.2 to 4.2
                      months.           months.           months.
2021...............  10.1 to 11.5      7.7 to 11.6       6.1 to 8.6
                      months.           months.           months.
------------------------------------------------------------------------

    With current processing times far exceeding USCIS' normal 3-month 
goal, the 180 days of additional employment authorization/EAD validity 
provided for these renewal (and some additional) categories by 8 CFR 
274a.13(d) is insufficient.\56\ After the additional 180 days is 
exhausted, many applicants are still waiting for their Form I-765 
renewal applications to be approved. Such applicants therefore lose 
employment authorization and/or their EADs become invalid while the 
decision on their renewal applications remains outstanding. By December 
31, 2021, approximately 66,000 renewal EAD applicants were in this 
situation. By comparison, in December 2020, approximately 3,300 
applicants \57\ had Form I-765 renewal applications pending beyond the 
180-day automatic extension.\58\
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    \56\ Other renewal categories that fall within 8 CFR 274a.13(d) 
experiencing processing times in December 2021 that exceed the 3-
month goal include EAD applicants filing under 8 CFR 274a.12(a)(5) 
for individuals granted asylum (6.1 to 10.2 months), (a)(10) for 
individuals granted withholding of deportation or removal (7.2 to 
10.3 months), and (c)(31) for VAWA self-petitioners (6.3 to 13.1 
months).
    \57\ Reasons for delays in case completions for these 
approximately 3,300 applicants included competing priorities, 
Requests for Evidence, staffing, and the COVID-19 pandemic.
    \58\ The 66,000 and approximately 3,300 figures reflect all EAD 
categories eligible for automatic extension of employment 
eligibility and/or EAD validity. Therefore, some applicants within 
this population, namely applicants filing under 8 CFR 274a.12(a) 
(employment authorized incident to status or circumstance), do not 
necessarily lose their employment authorization after the 180-day 
automatic extension period is exhausted. Because their employment 
authorization is incident to their immigration status or 
circumstance, these renewal EAD applicants' primary consequence is 
that their EADs become invalid. Considering that the vast majority 
(approximately 95 percent as of December 2021) of renewal EAD 
applicants are those filing under 8 CFR 274a.12(c)(8), (9), and 
(10), however, the 66,000 and 3,300 figures are presumed to 
represent largely applicants whose primary consequence is a loss of 
employment authorization itself. Even so, DHS recognizes harm may be 
experienced by applicants filing under 8 CFR 274a.12(a) categories 
as well. While these applicants may have available alternative 
evidentiary options other than an EAD that they can use to show 
proof of employment authorization to their employers for Form I-9 
completion or for purposes of receiving State or local public 
benefits (e.g., driver's licenses), DHS recognizes that having no 
valid EAD may nevertheless cause harm, including job loss.
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    Without immediate intervention, DHS estimates that the situation 
will only worsen over time, as each month, thousands of additional EAD 
renewal applicants are at risk of losing their employment authorization 
and/or EAD validity despite the 180-day automatic extension period 
currently provided by regulation. Beginning in calendar year (CY) 2022, 
DHS estimates that approximately 14,500 or more renewal applicants, the 
majority of whom are in the C08 pending asylum applicant category, lost 
or could lose their employment authorization and/or EAD validity each 
month unless immediate action is taken to remedy the situation.
    The situation for asylum applicants is especially dire because of 
the significant time that asylum applicants must wait to become 
employment-authorized in the first place. Under regulations that were 
in effect from August 2020 through February 2022, most members of this 
vulnerable population were not permitted to apply for employment 
authorization until 365 calendar days had elapsed since the filing of 
their asylum application.\59\ Although this regulation was vacated \60\ 
in February of 2022, by statute, asylum applicants still cannot be 
approved for initial EADs until their asylum applications have been 
pending for 180 days.\61\ This initial wait time exacerbates the often-
precarious economic situations asylum seekers may be in as a result of 
fleeing persecution in their home countries. Many lacked substantial 
resources to support themselves before they fled, or spent much of what 
they had to escape their country and travel to the United States. Those 
with resources may have been forced to leave what they had behind 
because they lacked the time to sell property or otherwise gather what 
they owned. When whole families are threatened, the primary earner may 
be the first to travel to the United States to establish a new home 
before bringing the rest of the family. The cost to travel to the 
United States is high, as is the relative cost of living. In these 
circumstances, if the asylum seeker is unable to seek employment for 
extended periods of time, it can not only negatively impact that 
individual, but the whole family as well.
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    \59\ See Employment Authorization Applications Rule and the 
Asylum Application, Interview, and Employment Authorization for 
Applicants Rule (``Broader Asylum EAD Rule''), 85 FR 38532 (June 26, 
2020), and preliminary injunction in Casa de Maryland Inc. et al. v. 
Chad Wolf et al., 8:20-cv-02118-PX (D. Md. Sept. 11, 2020).
    \60\ See Asylumworks, et al. v. Alejandro N. Mayorkas, et al., 
No 20-CV-3815 BAH, 2022 WL 355213 (D.D.C. Feb 7, 2022).
    \61\ See INA 208(d)(2), 8 U.S.C. 1158(d)(2).
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    For those who have already found jobs to support their needs, the 
potential for their initial EADs to expire prior to the approval and 
issuance of a renewed EAD may force them back into instability caused 
by a gap in the ability to legally work. Some employers, 
notwithstanding possible violation of INA section 274B governing unfair 
immigration-related employment practices (8 U.S.C. 1324b), or other 
laws, may also be hesitant to accept EADs as proof of employment 
authorization or hire employees who present EADs in the first place if 
it appears maintaining their employment will be difficult due to 
potential lapses in employment authorization. Continuous employment 
authorization during the pendency of an asylum application is vital for 
asylum seekers in the United States in order to access housing, food, 
and other necessities. In addition, asylum seekers may need income or 
employment to access medical care, mental health services, and other 
resources, as well as to access legal counsel in order to pursue their 
claims before USCIS or the Executive Office for Immigration Review 
(EOIR). Access to mental health services is particularly crucial for 
asylum seekers due to the prevalence of trauma-induced mental health 
concerns, including depression and post-traumatic stress disorder 
(PTSD). The physical harm experienced by many asylum seekers 
necessitates continuous medical care for extended periods of time. 
Finally, the purpose for which asylum seekers came to the U.S. is to 
seek long-term protection by receiving asylum. Legal assistance may be 
key for an asylum seeker to successfully claim asylum,\62\ but it is 
also often expensive.
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    \62\ See Transactional Records Access Clearinghouse, Asylum 
Grant Rates Climb Under Biden (2021), https://trac.syr.edu/immigration/reports/667/ (last updated Nov. 10, 2021) (``Asylum 
seekers who are represented by an attorney have greatly increased 
odds of winning asylum or other forms of relief from 
deportation.'').

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[[Page 26620]]

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

1. Precarious Fiscal Status in 2020 and Part of 2021
    USCIS is a fee-based agency that relies on predictable fee revenue 
and its carryover from the previous year. USCIS began experiencing 
fiscal troubles as early as December 2019, when at least one USCIS 
directorate initiated a hiring freeze.\63\ These fiscal troubles were 
due in part to the fact that USCIS has not been able to update its fee 
structure since the 2016 Fee Rule \64\ (including fees for Form I-765), 
which does not fully cover the costs of administering current and 
projected volumes of immigration benefit requests.
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    \63\ USCIS' Field Operations Directorate (FOD) initiated a 
hiring freeze in December 2019; USCIS' Service Center Operations 
Directorate (SCOPS) did the same starting in February 2020. While 
both FOD and SCOPS adjudicate Forms I-765, SCOPS adjudicates the 
vast majority, including all those filed by pending asylum 
applicants (C08 category).
    \64\ See 81 FR 73292 (Oct. 24, 2016).
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    USCIS promulgated a new Fee Rule in August 2020 to address this 
fee/cost disparity.\65\ In September 2020, however, the 2020 Fee Rule 
was enjoined before it took effect and remains under a preliminary 
injunction.\66\ As such, the current fee for Form I-765 remains at 
$410, the fee set by the earlier 2016 Fee Rule.\67\ The 2016 Fee Rule 
also exempts applicants from paying a fee if filing a Form I-765 to 
request renewal or replacement under 8 CFR 274a.12(c)(9) (pending 
adjustment of status application), as well as some additional 
categories.\68\
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    \65\ See U.S. Citizenship and Immigration Services Fee Schedule 
and Changes to Certain Other Immigration Benefit Request 
Requirements, 85 FR 46788 (Aug. 3, 2020) (``2020 Fee Rule''). The 
2020 Fee Rule, among other things, adjusted certain immigration and 
naturalization benefit request fees charged by USCIS, removed 
certain fee exemptions, and changed the fee waiver requirement.
    \66\ On September 29, 2020, the U.S. District Court for the 
Northern District of California in Immigration Legal Resource 
Center, et al. v. Wolf, et al., 20-cv-05883-JWS, preliminarily 
enjoined DHS from implementing or enforcing any part of the 2020 Fee 
Rule.
    \67\ See 81 FR 73292 (Oct. 24, 2016).
    \68\ See 85 FR 46788 (Aug. 3, 2020). Additional categories 
exempt from the filing fee include 8 CFR 274a.12(a)(8) and (10) and 
(c)(1), (4), (7), and (16). The category at 8 CFR 274a.12(c)(9) is 
one of the top categories experiencing unusually long processing 
times and, therefore, is one of the main focuses of this rule.
---------------------------------------------------------------------------

    The 2020 Fee Rule would have made various changes to USCIS filing 
fees to help cover the increased cost of adjudicating benefit requests, 
including a 34 percent increase for the Form I-765 filing fee to $550, 
and removing fee exemptions for Form I-765 renewals or replacements for 
applicants filing under 8 CFR 274a.12(c)(9), among other 
categories.\69\ USCIS continues to rely on the fee schedule established 
in the 2016 Fee Rule, which does not fully account for current costs 
associated with adjudicating benefit requests. This unsustainable 
fiscal situation has, among other things, resulted in the inability to 
fund sufficient new officer positions to handle the heavy adjudication 
workload,\70\ meaning that USCIS was already in a precarious financial 
position with regard to staffing when the COVID-19 pandemic began.
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    \69\ See 85 FR 46788 (Oct. 2, 2020). As noted above, DHS is 
preliminarily enjoined from implementing or enforcing any part of 
this rule.
    \70\ From FY 2015 through FY 2020, USCIS received a range of 
approximately 2.0 to 2.3 million Form I-765 filings (seeking both 
initial EADs and renewal of initial EADs) each fiscal year. In FY 
2021, this figure increased to approximately 2.6 million. This 
increase in Form I-765 filings, which was largely observed in the 
volume of Form I-765 renewal applications sought in categories 
eligible for automatic extension of EADs, contributed to the 
formation of backlogs, as discussed further in Section II.C below.
---------------------------------------------------------------------------

2. Public Health Emergency
    On January 31, 2020, the Secretary of Health and Human Services 
(HHS) declared a public health emergency under section 319 of the 
Public Health Service Act (42 U.S.C. 247d), in response to COVID-19, 
which is caused by the SARS-CoV-2 virus.\71\ On February 24, 2021, the 
President issued a continuation of the national emergency concerning 
the COVID-19 pandemic.\72\ Effective October 15, 2021, HHS renewed the 
determination that ``a public health emergency exists and has existed 
since January 27, 2020 nationwide.'' \73\ On January 14, 2022, and as a 
result of the continued consequences of the COVID-19 pandemic, HHS 
renewed yet again the determination that a public health emergency 
exists.\74\
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    \71\ See HHS, Determination that a Public Health Emergency 
Exists (Jan. 31, 2020), https://www.phe.gov/emergency/news/healthactions/phe/Pages/2019-nCoV.aspx.
    \72\ Notice on the Continuation of the National Emergency 
Concerning the Coronavirus Disease 2019 (COVID-19) Pandemic, 86 FR 
11599 (Feb. 26, 2021); Proclamation 9994 of March 13, 2020, 
Declaring a National Emergency Concerning the Coronavirus Disease 
(COVID-19) Outbreak, 85 FR 15337 (Mar. 18, 2020).
    \73\ HHS, Renewal of Determination that a Public Health 
Emergency Exists (Oct. 15, 2021), https://www.phe.gov/emergency/news/healthactions/phe/Pages/COVDI-15Oct21.aspx).
    \74\ See HHS, Office of the Assistant Secretary for Preparedness 
and Response, Renewal of Determination that a Public Health 
Emergency Exists (Jan. 14, 2022), https://aspr.hhs.gov/legal/PHE/Pages/COVID19-14Jan2022.aspx.
---------------------------------------------------------------------------

    As noted above, USCIS was already in a precarious financial 
situation in 2019. This was severely exacerbated by a significant drop 
in receipts across many of the most common benefit types at the 
beginning of the COVID-19 pandemic in spring 2020.\75\ The significant 
drop in revenue USCIS experienced early in the pandemic led the agency 
to plan for a sweeping furlough of approximately 70 percent of its 
workforce to avoid financial collapse, including furloughing 
immigration services officers who adjudicate the Form I-765.\76\ To 
avoid the drastic furlough measures, USCIS employed every available 
means to preserve sufficient funds to meet payroll and carryover 
obligations. These measures included drastic cuts for supplies, 
facilities, overtime, and contractor support services, as well as an 
agency-wide hiring freeze lasting from May 1, 2020, through March 31, 
2021. The loss of overtime funds hindered USCIS' ability to address and 
mitigate backlogs through use of existing staff, which has been a 
strategy used successfully in the past to ensure processing times 
remain within goals. For example, in FY 2019, USCIS used $5.52 million 
of overtime funds for assigned staff to conduct border case \77\ 
processing after working business hours and on the weekends, instead of 
assigning more staff to those caseloads during regular work hours, 
which would have pulled them away from affirmative asylum processing.
Through the use of overtime, USCIS was able to continue to maintain its 
assigned staffing levels to affirmative asylum processing, but this 
option was not available in 2020, due to USCIS' worsening fiscal 
situation beginning in late 2019 and continuing into 2020 and part of 
2021. USCIS took action to avert a fiscal crisis, including limiting

[[Page 26621]]

spending to salaries and mission-critical activities; making drastic 
cuts to spending on supplies, facilities, and contractor support 
services; and eliminating overtime. The loss of contractor support 
services also hindered USCIS' ability to intake filings efficiently and 
prepare cases for adjudication by officers. The agency-wide hiring 
freeze expanded upon individual USCIS components' hiring freezes 
already in place.
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    \75\ See 2020 USCIS Statistical Annual Report, p. 4: ``[During 
the onset of the COVID-19 pandemic], incoming receipts were 32 
percent lower compared to the same time period in FY 2019. By the 
end of FY 2020, USCIS received about 5% fewer receipts than in FY 
2019. Although receipts decreased in some of the most frequently 
submitted form types, others such as the N-400 (Application for 
Naturalization) and I-129 (Petition for Nonimmigrant Worker) 
increased slightly from FY 2019.'' In addition to the lowest number 
of receipts in the past 5 years, USCIS also completed the lowest 
number of benefit requests in the past 5 years. The worst rates of 
completion were observed during the beginning of the pandemic when 
USCIS field offices and ASCs were closed to the public. While USCIS 
attempted to recover by shifting adjudications to form types not 
requiring in-person appearances, USCIS still completed fewer benefit 
requests than it received in FY 2020. See 2020 USCIS Statistical 
Annual Report, p. 4.
    \76\ During this time period, USCIS had an estimated $1.2-
billion budget shortfall.
    \77\ A border case included credible and reasonable fear 
interviews, as well as Migrant Protection Protocols (MPP) non-
refoulement interviews.
---------------------------------------------------------------------------

    These fiscal issues had a direct impact on staffing, and 
insufficient staffing levels directly impacted the processing times for 
Form I-765. In addition to a direct shortage of staff due to hiring 
freezes, USCIS experienced a noticeable increase in attrition following 
announcement of a potential furlough that could have impacted nearly 70 
percent of employees.\78\ Although DHS cannot quantify employees' 
reasons for leaving, it is likely that the threatened furlough and 
uncertain fiscal status of the agency played a role. The hiring freeze 
also meant that the higher-than-normal number of vacancies could not be 
filled. Additionally, a number of initiatives have taken staff away 
from their normal duties such as important temporary assignments to the 
southern border, efforts relating to unaccompanied children, and 
processing petitions and applications by or on behalf of Afghan 
evacuees. All these factors contributed to a decrease in Form I-765 
completions. For example, in FY 2019, the Service Center Operations 
Directorate (SCOPS) allocated 343,399 officer hours to its Form I-765 
workload \79\ and completed 1,443,235 adjudications (mostly Form I-765 
applications filed under 8 CFR 274a.12(c)(8), followed by (c)(33) 
(granted DACA) and (c)(3)(B) (student post-completion optional 
practical training (OPT)). By comparison, in FY 2020, SCOPS allocated 
327,947 (or approximately 4.5 percent fewer) officer hours to the same 
workload and subsequently was only able to complete 1,379,745 (or 
approximately 4.4 percent fewer) adjudications. These reductions were 
partly attributable to the overall decrease in staff, as well as 
competing priorities which factor into how existing resources are 
allocated. At the start of FY 2020, SCOPS had 5,102 employees on board. 
This diminished to 4,886 at the start of FY 2021 and 4,731 at the start 
of FY 2022 as the effects of attrition and the hiring freeze continued. 
This overall decrease of approximately 7.3 percent does not include the 
additional loss of I-765 adjudication hours that stemmed from SCOPS 
supporting several programs requesting detailees.\80\ The number of 
detailees temporarily missing from the SCOPS workforce has not been 
static, but exceeded 200 employees at points during FY 2021, leaving 
SCOPS staffed at levels less than 89 percent of what existed going into 
FY 2020. This data does not include contractor hours, which also were 
severely impacted by USCIS' fiscal situation as USCIS was forced to 
reduce the number of contractors available to assist with case 
processing.
---------------------------------------------------------------------------

    \78\ See DHS, USCIS, News Release, Deputy Director for Policy 
Statement of USCIS' Fiscal Outlook (June 25, 2020), https://www.uscis.gov/news/news-releases/deputy-director-for-policy-statement-on-uscis-fiscal-outlook.
    \79\ Form I-765 workload includes requests for initial, renewal, 
and replacement employment authorization and/or EADs.
    \80\ A detail is a temporary assignment of an employee to a 
different position for a specified period, with the employee 
returning to his or her regular duties at the end of the detail.
---------------------------------------------------------------------------

    Nonetheless, despite the reduction in officer hours, USCIS was able 
to maintain its 3-month processing goal up until December 2020, due to 
a corresponding reduction in Form I-765 receipts. This changed in CY 
2021, when USCIS experienced an extraordinary, 2-month surge of Form I-
765 filings in spring 2021 and a sustained increase of filings 
thereafter, which is discussed further in Section C below. Despite the 
surge of Form I-765 filings, SCOPS was able to allocate only 314,924 
officer hours (or approximately 4.0 percent fewer than FY 2020 and 
approximately 8.3 percent fewer than FY 2019) to its Form I-765 
workload and completed only 1,249,548 adjudications (or approximately 
9.4 percent fewer than FY 2020 and approximately 13.4 percent fewer 
than FY 2019) due to insufficient staffing and competing priorities. 
USCIS was unable to surge additional resources to increase officer 
hours adjudicating Form I-765 applications because of USCIS' limited 
resources and the need to manage e other competing priorities in FY 
2021. For example, USCIS surged officers to adjudicate employment-based 
Form I-485 applications to minimize the number of employment-based 
immigrant visas that would go unused at the end of FY 2021, after an 
extraordinary number of such unused family-preference visa numbers from 
FY 2020 ``fell across'' to the employment-based visa allocation for FY 
2021, see generally INA 201(d)(2)(C), 8 U.S.C. 1151(d)(2)(C), due 
primarily to Department of State consular closures caused by the COVID-
19 pandemic.

[[Page 26622]]



Table 2--Impact of Steadily Decreasing Staffing Levels on SCOPS' Form I-
                             765 Completions
                   [initial and renewal applications]
------------------------------------------------------------------------
      Fiscal year       Officer hours allocated   Form I-765 completions
------------------------------------------------------------------------
2019..................  343,399................  1,443,235.
2020..................  327,947 (approximately   1,379,745
                         4.5 percent fewer than   (approximately 4.4
                         2019).                   percent fewer than
                                                  2019).
2021..................  314,924 (approximately   1,249,548
                         8.3 percent fewer than   (approximately 13.4
                         2019 and 4.0 percent     percent fewer than
                         fewer than 2020).        2019 and 9.4 percent
                                                  fewer than 2020).
------------------------------------------------------------------------
Note: This data does not include contractor hours, which also were
  severely impacted by USCIS' fiscal situation as USCIS was forced to
  reduce the number of contractors available to assist with case
  processing. SCOPS' contractor staff has been reduced by approximately
  8.2% since October 1, 2020.

    The Field Office Directorate's National Benefit Center (NBC), which 
also adjudicates a number of Form I-765 applications \81\ observed a 
similar reduction in staff and completions.
---------------------------------------------------------------------------

    \81\ Such as initial and renewal Forms I-765 filed under 8 CFR 
274a.12(c)(9) and (10), which experienced a dramatic growth in 
processing times in 2021, as detailed in this rule.

 Table 3--Impact of Steadily Decreasing Staffing Levels on NBC's Form I-
                             765 Completions
                   [initial and renewal applications]
------------------------------------------------------------------------
      Fiscal year       Officer hours allocated   Form I-765 completions
------------------------------------------------------------------------
2019..................  115,510................  612,464.
2020..................  112,266 (approximately   605,105 (approximately
                         2.8 percent fewer than   1.2 percent fewer than
                         2019).                   2019).
2021..................  102,099 (approximately   509,973 (approximately
                         11.6 percent fewer       16.7 percent fewer
                         than 2019 and 9.1        than 2019 and 15.7
                         percent fewer than       percent fewer than
                         2020).                   2020).
------------------------------------------------------------------------
Note: This data does not include contractor hours, which also were
  severely impacted by USCIS' fiscal situation as USCIS was forced to
  reduce the number of contractors available to assist with case
  processing.

3. Other Impacts to Operations
    In response to the declaration of a public health emergency, USCIS 
instituted a number of changes to protect USCIS employees and 
immigration benefit applicants. From March 18 through June 3, 2020, 
USCIS closed all field offices and asylum offices to the public, nearly 
halting all in-person services.\82\ At USCIS field offices, officers 
conduct in-person interviews related to Form I-485, Application to 
Register Permanent Residence or Adjust Status, as well as Form N-400, 
Application for Naturalization, to become a U.S. citizen, among other 
work. At USCIS asylum offices, officers conduct in-person interviews of 
asylum applicants (using Form I-589, Application for Asylum and 
Withholding of Removal). Upon reopening to the public, many asylum 
offices operated at lower capacity than before the halt in in-person 
services. Interviewing rooms that previously accommodated asylum 
officers, asylum applicants, interpreters (if present), and attorneys 
(if present) all in one room, now would accommodate just the asylum 
officer, with applicants and any other participants each sitting in 
separate interview rooms and connecting electronically. This setup 
substantially decreased daily interview capacity.\83\
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    \82\ See, e.g., News Alert, USCIS Temporarily Closing Offices to 
the Public March 18-April 1 (Mar. 17, 2020), https://www.uscis.gov/news/alerts/uscis-temporarily-closing-offices-to-the-public-march-18-april-1. Some limited emergency in-person services were available 
upon request during this time.
    \83\ USCIS has issued a series of temporary final rules that 
allow asylum offices to increase the use of telephonic interpreters, 
in order to minimize the impact of this safety measure on the 
agency's ability to adjudicate asylum applications in a timely 
manner. See Asylum Interview Interpreter Requirement Modification 
Due to COVID-19, 85 FR 59655 (Sept. 23, 2020) (TFR); Asylum 
Interview Interpreter Requirement Modification Due to COVID-19, 86 
FR 15072 (Mar. 22, 2021); and Asylum Interview Interpreter 
Requirement Modification Due to COVID-19, 86 FR 51781 (Sept. 17, 
2021). As described in Section D.1. below, asylum application 
processing times impact Form I-765 renewal processing because the 
longer an asylum application is pending, the more times an applicant 
may need to file Form I-765 to renew employment authorization. If an 
individual's asylum application is approved, they no longer need to 
file Form I-765 to obtain employment authorization because asylees 
are employment authorized incident to status. See 8 CFR 
274a.12(a)(5). While some asylees may choose to file Form I-765 
using the (a)(5) category to receive EADs as evidence of their 
employment authorization, asylum applicants under the (c)(8) 
category make up approximately 10 times more Form I-765s than 
asylees under the (a)(5) category. See DHS, USCIS, Form I 765 
Application for Employment Authorization All Receipts, Approvals, 
Denials Grouped by Eligibility Category and Filing Type (FY 2019-
21), https://www.uscis.gov/sites/default/files/document/data/I-765_Application_for_Employment_FY03-21.pdf (last updated Oct 2021). 
Therefore, USCIS' efforts to minimize the impact of safety measures 
on the agency's ability to adjudicate asylum applications is helping 
to reduce the number of asylum applicants making up the pending Form 
I-765 applicant pool, which is helping to reduce the overall Form I-
765 adjudication backlog.
---------------------------------------------------------------------------

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

[[Page 26623]]

a paper receipt file,\84\ and up until 2020, application intake and 
initial processing generally was handled by Federal contractors, many 
of whom were terminated due to USCIS' fiscal troubles as detailed 
above. Proactive adjustments to workspaces, schedules, and file 
movement practices restored these functions despite a contractor 
workforce shortfall, but adjustments took approximately 3-5 months to 
develop and take effect.
---------------------------------------------------------------------------

    \84\ Although some Form I-765 applications for certain 
eligibility categories (e.g., (c)(3)(A), F-1 Pre[hyphen]completion 
OPT; (c)(3)(B), F-1 Post-completion OPT; and (c)(3)(C), F-1 STEM OPT 
extension) now can be received and adjudicated in an electronic 
system, in early 2020, all Form I-765 applications were adjudicated 
on paper.
---------------------------------------------------------------------------

    USCIS Application Support Centers (ASC), which primarily collect 
biometrics such as photographs and fingerprints in relation to 
immigration benefit requests, were similarly impacted by the COVID-19 
public health emergency. ASCs were temporarily closed from March 18 
through July 12, 2020, and began a phased reopening with limited 
capacity on July 13, 2020. Under normal circumstances, individuals who 
must appear at an ASC are scheduled to do so within 3-4 weeks of USCIS 
receiving the underlying application; however, the lengthy closures 
created massive appointment backlogs. The ASC appointment backlog 
reached its peak of 1.4 million in January 2021. Although this backlog 
has been largely addressed, the downstream effects linger in many work 
streams.\85\ Historically, there have been limited Form I-765 
categories that require biometrics submission; \86\ however, the 
Employment Authorization Applications Rule and the Asylum Application, 
Interview, and Employment Authorization for Applicants Rule (``Broader 
Asylum EAD Rule''), 85 FR 38532 (June 26, 2020), imposed a biometrics 
collection requirement for initial and renewal Forms I-765 in the C08 
asylum applicant category--which represents approximately 58 percent of 
the renewal EAD receipts filed that are eligible for the automatic 
extension. Consequently, when ASCs were closed, most Form I-765 renewal 
applications in the C08 category could not be processed.\87\ 
Furthermore, once ASCs reopened, a large number of applications of 
varying types needed to be rescheduled, yet there were a limited number 
of ASC appointments available. This led to delays in applicants 
receiving ASC appointments, which further delayed the processing of 
their applications, including Form I-765 renewal applications in the 
C08 category. The delay in biometrics capture created an interruption 
to adjudications by preventing applications from getting to the 
``adjudication-ready'' stage. Many categories of I-765s are dependent 
on their own biometrics requirement or a biometrics requirement 
associated with an underlying benefit, resulting in bottlenecks that 
slowed overall adjudications and increased processing times. The new 
biometrics collection requirement for Form I-765 renewal applications 
in the C08 category thus played a significant role in the downstream 
effects of ASCs' temporary closures.
---------------------------------------------------------------------------

    \85\ USCIS sought to mitigate the impact of this biometrics 
capture delay by reusing biometrics where possible. See, e.g., USCIS 
News Alert, USCIS to Continue Processing Applications for Employment 
Authorization Requests Despite Application Support Center Closures 
(Mar. 30, 2020), https://www.uscis.gov/news/alerts/uscis-to-continue-processing-applications-for-employment-authorization-extension-requests-despite.
    \86\ For example, in general, applicants must pay an $85 
biometric collection services fee if filing with one of the 
following eligibility categories: (c)(8) An applicant with a pending 
asylum application requesting an initial or renewal EAD; (c)(33) 
Requesting consideration of Deferred Action for Childhood Arrivals 
(DACA); (c)(35) A principal beneficiary of an approved employment-
based immigrant petition who is facing compelling circumstances; 
(c)(36) A spouse or unmarried dependent child of a principal 
beneficiary of an employment-based immigrant petition who is facing 
compelling circumstances; or (c)(37) An applicant for Commonwealth 
of the Northern Mariana Islands long-term resident status.
    \87\ However, the U.S. District Court for the District of 
Maryland's Sept. 11, 2020, preliminary injunction in Casa de 
Maryland Inc. et al. v. Chad Wolf et al., 8:20-cv-02118-PX (D. Md. 
Sept. 11, 2020), provided limited injunctive relief to members of 
two organizations, CASA de Maryland (CASA) and the Asylum Seeker 
Advocacy Project (ASAP), who file Form I-589 or Form I-765 as asylum 
applicants. Specifically, the court preliminarily enjoined 
enforcement of several regulatory changes in the Removal of 30-Day 
Processing Provision for Asylum Applicant-Related Form I-765 
Employment Authorization Applications Rule, 85 FR 37502 (June 22, 
2020), and the Broader Asylum EAD Rule for CASA and ASAP members, 
including the requirement to submit biometric information as part of 
the filing of a Form I-765 based on an asylum application. On 
February 7, 2022, the U.S. District Court for the District of 
Columbia in Asylumworks, et al. v. Alejandro N. Mayorkas, et al. 
vacated these two rules entirely.
---------------------------------------------------------------------------

    In addition, while adjudication of Form I-765 does not generally 
include an in-person interview, some Forms I-765 are based on pending 
applications that do involve in-person interviews. With the fiscal and 
operational constraints outlined above, USCIS had processing delays in 
adjustment of status applications and asylum applications; applicants 
seeking employment authorization based on a pending adjustment of 
status application or asylum application comprise the great majority of 
the filing population seeking renewal EADs and eligible for an 
automatic extension of their EADs under 8 CFR 274a.13(d).\88\ Owing to 
USCIS' inability to adjudicate interview-dependent adjustment of status 
and asylum applications while its offices were closed, those cases were 
pending longer than usual, in addition to an influx of new 
applications. With those underlying applications taking longer to 
process, the population of applicants who needed to request EAD 
renewals during the pendency of their primary applications 
increased.\89\
---------------------------------------------------------------------------

    \88\ See above section entitled ``Overview of Issues Negatively 
Impacting Form I-765 Processing Times.''
    \89\ For example, in 2020, an applicant seeking employment 
authorization based on a pending adjustment of status application 
would have obtained an EAD valid for 1 year, if eligible. With 
processing times for adjustment of status applications extending 
beyond 1 year, the applicant would have to apply to renew the EAD to 
obtain employment authorization while their adjustment of status 
application remains pending. Where adjustment of status applications 
with an immediately available immigrant visa are processed within 
the 6-month processing goal, such applicants generally should not 
have to renew their EAD as they would receive employment 
authorization incident to their lawful permanent resident status 
upon approval of their adjustment of status application. In 
recognition of prolonged processing times for adjustment of status 
applications, USCIS updated its policy guidance to provide a 2-year 
validity period for initial and renewal EADs issued based on pending 
adjustment of status applications. See USCIS Policy Manual, Policy 
Alert (PA-2021-10), Employment Authorization for Certain Adjustment 
Applicants (Jun. 9, 2021), https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20210609-EmploymentAuthorization.pdf. In doing so, USCIS attempted to 
alleviate the burden on adjustment of status applicants seeking 
EADs. Unfortunately, USCIS was unable to take similar steps for the 
asylum applicant population, as it was already providing 2-year 
validity periods for employment authorization and EADs, the maximum 
allowed by the Broader Asylum EAD Rule. As of December 2021, the 
median processing time for affirmative asylum applications (Form I-
589) is 55.4 months. As of December 2021, the median processing time 
for adjustment of status applications (Form I-485) is 13.2 months, 
however some adjustment applications remain pending much longer 
because of regression in the cutoff dates used to determine when an 
immigrant visa is immediately available.
---------------------------------------------------------------------------

    Even though USCIS reopened its ASCs, field offices, and asylum 
offices in mid-2020, USCIS still is working to return to pre-pandemic 
levels of operation, with varying progress across programs. For 
example, social distancing guidelines result in reduced interview 
capacity and productivity for some interview-dependent benefit 
requests, including some adjustment of status and asylum applications. 
USCIS implemented measures to recapture productivity under social 
distancing protocols, including video-assisted interviewing, increased 
use of telephonic interpreters,\90\ expanded

[[Page 26624]]

work flexibilities for USCIS employees,\91\ and remote applicant-
centric services such as a pilot remote-attorney participation 
program.\92\ However, the impacts of the operational disruptions in 
2020 are still evident in USCIS' prolonged processing times, 
illustrating USCIS' continued struggle to address the pending cases 
that accrued when offices were closed while attempting to keep pace 
with new filings (which, in the case of Form I-765 renewals, 
unexpectedly surged in 2021, as described below).\93\
---------------------------------------------------------------------------

    \90\ See Asylum Interview Interpreter Requirement Modification 
Due to COVID-19, 85 FR 59655 (Sept. 23, 2020) (TFR); Asylum 
Interview Interpreter Requirement Modification Due to COVID-19, 86 
FR 15072 (Mar. 22, 2021); and Asylum Interview Interpreter 
Requirement Modification Due to COVID-19, 86 FR 51781 (Sept. 17, 
2021).
    \91\ As an example, USCIS expanded telework flexibility 
arrangements under which an employee could perform the duties and 
responsibilities of such employee's position, and other authorized 
activities, from an approved worksite other than the location from 
which the employee would normally work. In addition, certain 
telework restrictions were lifted (e.g., allowing split shifts, non-
standard work hours, and mixing telework and leave) so that 
caregivers and parents could meet personal and work obligations 
while working from home.
    \92\ See Impact of Pandemic Response Measures, p. 6, in Backlog 
Reduction of Pending Affirmative Asylum Cases: Fiscal Year 2021 
Report to Congress (Oct. 20, 2021), https://www.dhs.gov/sites/default/files/2021-12/USCIS%20-%20Backlog%20Reduction%20of%20Pending%20Affirmative%20Asylum%20Cases.pdf.
    \93\ In the last three fiscal years, the median processing time 
across all form types was 8.7 months in FY 2021, 8.3 months in FY 
2020, and 6.5 months in FY 2019.
---------------------------------------------------------------------------

    Additionally, USCIS continues to provide flexibilities in 
recognition of the pandemic's ongoing impacts on benefit requestors, 
which in some cases negatively impact the efficiency of USCIS 
operations.\94\ For example, USCIS continues to provide rescheduling 
flexibilities for interviews and ASC appointments, limit the number of 
staff and members of the public that may appear in person at a USCIS 
office, and provide flexibilities pertaining to responses to Requests 
for Evidence (RFEs) and Notices of Intent to Deny (NOIDs) by 
considering a response received within 60 calendar days after the 
response due date set in the request or notice before taking any 
action.\95\ While USCIS believes these steps have been critical to 
address the impacts of the COVID-19 pandemic, these measures have not 
been implemented without costs. Limiting the number of in-person staff 
at any given time may reduce the number of interviews USCIS can conduct 
in any given day, although USCIS is exploring additional alternatives 
to in-person interviewing that may mitigate this impact. Providing 
rescheduling flexibilities for interviews and time for responses for 
RFEs or NOIDs also prolong the officer's adjudication times. The 
downstream effect of delays in initial file processing, delays at the 
ASC and field offices, and insufficient staffing levels due to USCIS' 
fiscal situation in calendar years 2019 and 2020, as well as delays 
caused in certain workloads due to workforce shifts to ensure timely 
adjudication of other benefits, contributed to USCIS accruing an 
overall net backlog \96\ of approximately 5.1 million cases as of the 
end of December 2021, of which 930,000 (approximately 18%) were pending 
Form I-765 applications.
---------------------------------------------------------------------------

    \94\ For a detailed description of the many flexibilities and 
precautionary measures USCIS provides to combat COVID-19, see 
USCIS's website at https://www.uscis.gov/about-us/uscis-response-to-covid-19 (last updated Mar 30, 2022).
    \95\ See Deadlines for Certain Requests, Notices, and Appeals in 
the USCIS Response to COVID-19 web page at https://www.uscis.gov/about-us/uscis-response-to-covid-19 (last updated Mar. 30, 2022).
    \96\ Backlog is defined as the volume of pending applications 
that exceed the level of acceptable pending cases. Whether a pending 
case load is acceptable is pegged to the volume of applications 
receipted during the target cycle time period (e.g., 5 months). The 
target cycle time refers to the processing time goal for a given 
application type. Net backlog is defined similarly to backlog, 
except that the number of pending applications is reduced to account 
for cases in active suspense categories (i.e., cases that are 
deducted from the gross backlog, such as cases with a pending 
Request for Evidence, cases awaiting visa availability from the 
Department of State, or cases pending re-examination for an N-400, 
Application for Naturalization).
---------------------------------------------------------------------------

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

1. Comparing FY 2021 Receipts to Prior Years' Receipts
    The most recent contributing factor to the severe backlog and 
increased processing times for Forms I-765 is a substantial and 
unprecedented 2-month increase of Form I-765 renewal filings in March 
and April 2021, and a sustained increase in filings thereafter. In CY 
2019, the average number of monthly renewal applications filed for the 
C08, C09, and C10 categories combined was 46,715. In CY 2020, the 
average number of monthly renewal applications filed for these three 
categories was 43,232. In March 2021, the renewal receipt numbers for 
these three categories spiked 56 percent over the previous month and 
76.4 percent over the monthly average total for 2020. In April 2021, 
the renewal receipt numbers for these three categories remained 
elevated such that they were 25.6 percent higher than February 2021, 
and 53.6 percent over the monthly average total for 2020. The March and 
April 2021 increase in Form I-765 renewal applications was unexpected 
based on historical filing patterns and appears to be related to 
litigation.\97\
---------------------------------------------------------------------------

    \97\ This increase in Form I-765 filings may have been driven 
primarily by litigation and the ``frontlog'' of applications at the 
three USCIS lockbox facilities, which receive and process 
applications and payments in Chicago, Illinois; Phoenix, Arizona; 
and Lewisville, Texas. On July 20, 2020, Casa de Maryland, Inc. 
filed suit against then-Acting DHS Secretary Chad Wolf and DHS to 
enjoin changes to EAD rules for asylum seekers. On September 11, 
2021, the U.S. District Court of Maryland issued a preliminary 
injunction of the new EAD rules. See Casa de Maryland v. Wolf, 486 
F.Supp.3d 928 (D. Md. Sept. 11, 2020). Consequently, approximately 
23,000 applications pending at the USCIS lockbox were rejected in 
late October 2020 for a failure to pay the required biometrics fee 
or a failure to provide proof that the applicant was a member of the 
litigation class. These applications were refiled and, coupled with 
the prioritization of initial Form I-765 applications under category 
C08 due to the litigation, led to a redirection of resources away 
from Form I-765 renewal applications. In addition, as noted above, 
the lockbox was experiencing a ``frontlog'' of applications, which 
led to a processing delay.

[[Page 26625]]



                                  Table 4--Surge in Renewal Form I-765 Filings
----------------------------------------------------------------------------------------------------------------
                      Month                        C08 category    C09 category    C10 category    Average total
----------------------------------------------------------------------------------------------------------------
February 2021...................................          30,857          14,661           8,367          52,885
March 2021......................................          52,007          19,589          10,840          82,436
April 2021......................................          42,101          15,189           9,134          66,424
May 2021........................................          32,751          13,332           7,887          53,960
----------------------------------------------------------------------------------------------------------------

    In the eight months following April 2021, the receipt numbers for 
these categories fell to an average of 52,400 receipts per month, but 
that was still 21 percent above the average monthly total for CY 2020. 
The increase in the number and duration of pendency of asylum and 
adjustment of status applications, which form the basis for the two 
most populous EAD filing categories eligible for the automatic 
extension under 8 CFR 274a.13(d)(1), may have led to this sustained 
increase in applications for initial and renewal employment 
authorization (in the C08 and C09 categories, respectively), which 
further compounded the Form I-765 adjudication backlog.\98\
---------------------------------------------------------------------------

    \98\ USCIS is actively working to address prolonged processing 
times affecting applications and petitions that form the basis of a 
Form I-765 filing. These measures are described in further detail in 
Section D.1 below.
---------------------------------------------------------------------------

    Specifically, in the years leading up to FY 2022, asylum 
application receipts outpaced available resources leading to an 
increase in pending asylum cases, both in affirmative and defensive 
filings, as shown in Table 5.\99\ The increase in pending asylum cases 
contributed to the increase in C08 renewal filings in FY 2021, which 
further impacted the Form I-765 renewal backlog.
---------------------------------------------------------------------------

    \99\ See Background, p. 2, in Backlog Reduction of Pending 
Affirmative Asylum Cases: Fiscal Year 2021 Report to Congress (Oct. 
20, 2021), https://www.dhs.gov/sites/default/files/2021-12/USCIS%20-%20Backlog%20Reduction%20of%20Pending%20Affirmative%20Asylum%20Cases.pdf (``The affirmative asylum backlog is the result of a prolonged, 
significant increase in affirmative asylum application filings and 
credible fear screenings, which are processed by the U.S. 
Citizenship and Immigration Services (USCIS) asylum offices. Between 
FY 2013 and FY 2017, despite significant staffing increases, receipt 
growth in asylum office workloads outpaced the expansion of asylum 
office staffing and the establishment of new or expanded facilities 
needed to support additional staffing growth.'').
    \100\ See Executive Office of Immigration Review Adjudication 
Statistics, Total Asylum Applications (Jan 19, 2022), https://www.justice.gov/eoir/page/file/1106366/download.
    \101\ Data reflects affirmatively filed I-589 asylum 
applications and do not include defensive asylum claims before a DOJ 
EOIR immigration court. See USCIS, Number of Service Wide Forms, 
October 1, 2021-December 31, 2021, https://www.uscis.gov/sites/default/files/document/reports/Quarterly_All_Forms_FY2022_Q1.pdf 
(last updated Feb. 2022).

                                       Table 5--Total Asylum Cases Pending
----------------------------------------------------------------------------------------------------------------
                                                                     DOJ \100\      USCIS \101\        Total
----------------------------------------------------------------------------------------------------------------
Total Asylum Cases Pending in:
    FY 2017 (Sep 2017)..........................................         377,140         289,835         666,975
    FY 2018 (Sep 2018)..........................................         473,510         319,202         792,712
    FY 2019 (Sep 2019)..........................................         608,976         339,836         948,812
    FY 2020 (Sep 2020)..........................................         647,923         386,014       1,033,937
    FY 2022 (Dec 2021)..........................................         628,551         432,341       1,060,892
----------------------------------------------------------------------------------------------------------------

    The number of employment-based adjustment of status applications 
increased significantly in FY 2021, as well, due to the inordinate 
number of employment-based visas that became available as a result of 
unusually low visa usage in other categories in FY 2020 due to the 
COVID-19 pandemic. At the start of FY 2021, there were approximately 
126,000 employment-based adjustment of status applications pending with 
USCIS. Approximately 313,000 employment-based adjustment of status 
applications were received during FY 2021, which likely contributed to 
the increase in C09 initial filings in FY 2021, consequently further 
taxing USCIS' resources to timely process renewal applications. USCIS 
also saw significant increases in filings across other benefit request 
types during CY 2021.\102\
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    \102\ For example, USCIS also encountered large increases of 
filings of Form I-131, Application for Travel Document, possibly 
related to the increase in filings of Form I-485, Application to 
Register Permanent Residence. From CY 2020 to CY 2021, USCIS 
observed an overall 25.8 percent increase in receipts across form 
types. Although this represents a substantial increase, there was a 
29 percent increase in Form I-765 renewal applications in the auto 
extension categories.
---------------------------------------------------------------------------

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

            Table 5A--Initial and Renewal Form I-765 Filings
------------------------------------------------------------------------
                              Form I-
       Calendar year            765            Surge or difference
                              filings
------------------------------------------------------------------------
2019.......................  2,210,000
2020.......................  2,090,000  5 percent lower than 2019.
2021.......................  2,550,000  15 percent higher than 2019.
                                        22 percent higher than 2020.
------------------------------------------------------------------------


                  Table 5B--Renewal Form I-765 Filings
------------------------------------------------------------------------
                              Form I-
       Calendar year            765            Surge or difference
                              filings
------------------------------------------------------------------------
2019.......................  1,120,000
2020.......................  1,040,000  7 percent lower than 2019.
2021.......................  1,260,000  13 percent higher than 2019.
                                        21 percent higher than 2020.
------------------------------------------------------------------------

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

[[Page 26626]]

financial strains led to staffing issues, resulting in an inability to 
handle the 2-month spike and monthly increase in filings in CY 2021 
over CY 2020. The average monthly receipts in 2021 for the automatic 
extension categories were 60,300, which was 13,500 per month (or 29 
percent) higher than 2020 monthly averages. In addition to this higher 
overall receipt volume in 2021, there was a surge in receipts in March 
2021 (88,500) and April 2021 (71,200) that led to a rapid increase in 
pending applications. On top of the higher receipt volumes, due to 
staffing issues, the average number of monthly completions in 2021 was 
33,900 per month, which was 10,600 per month (or 24 percent) lower than 
2020 monthly averages. The combination of higher receipts and lower 
completions led to increased processing times, which downstream 
resulted in higher numbers of renewal applications pending past the 
180-day automatic extension period.
2. Workforce Planning Shortfall
    USCIS normally uses an annual workforce planning process to assess 
staffing requirements, known as the Staffing Allocation Model (SAM). 
The SAM is focused on allocating staff to process the anticipated 
number of new/incoming receipts for all workloads for the next fiscal 
year. Workforce planning is based on USCIS estimates for each 
adjudication workload for the coming year. These workload estimates are 
established through a cross-disciplinary committee, the Volume 
Projection Committee, that forecasts receipts on the basis of 
statistical modeling and any recent policy changes. In 2021, new 
receipts rose too rapidly to provide new staffing allocations within 
the SAM for both new receipts and backlog cases. In other words, 
despite the predictions based on data and historic trends, the Form I-
765 filings in FY 2021 were significantly greater than forecasted. 
USCIS relies on a combination of internal processes and plans to plan 
for backlog reduction.\103\
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    \103\ One such process or plan is the Model for Operational 
Planning, which considers the backlog and the outlook of future 
backlogs based on current and future staffing. The primary way 
staffing for backlog reduction has taken place is through improved 
efficiencies to current processes as well as appropriations from 
Congress.
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D. Emergency Temporary Solution To Address Current Backlog

    The sudden 2-month increase in Form I-765 renewal filings in March 
and April of 2021 and sustained overall increase in Form I-765 renewal 
receipts thereafter prompted USCIS to directly address the growing 
backlog of Form I-765 filings. Historically, USCIS had sufficient 
resources to address growing backlogs by allocating additional officers 
to a particular workload. However, USCIS was unable to do so in the 
summer of 2021 due to understaffing, including reduced contracting 
resources resulting from the prior years' fiscal situation; the broad 
scope of backlogs across numerous benefit types; and competing 
priorities, as discussed above. USCIS was, however, able to apply 
overtime funds to the renewal Form I-765 workload in an attempt to 
control the growing backlog during the last quarter of FY 2021.\104\ 
Indeed, USCIS observed an increase in Form I-765 renewal completions, 
however, it was not enough to match the increased volume of receipts 
and therefore USCIS' responsive measures mitigated but did not halt the 
backlog growth.\105\ Considering the operational constraints described 
above, USCIS also explored programmatic improvement initiatives and 
updates to its policy and operational guidance in the summer of 2021 to 
attempt to address prolonged Form I-765 processing times and their 
impact. For example, USCIS launched a backlog reduction effort in 
September 2021 to assess other options available to the agency to 
address the severe and growing Form I-765 backlogs.\106\ It has become 
apparent to USCIS, however, that its limited resources are insufficient 
to appropriately address the growing backlogs, with the incoming volume 
of Form I-765 renewal filings showing no signs of slowing. Further, 
USCIS has assessed that the conventional measures USCIS had applied 
(e.g., overtime) and was continuing to explore (e.g., through the 
backlog reduction effort) will not be able to timely address the 
impending loss of employment authorization and EAD validity.
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    \104\ See Section B.2 for more information on USCIS' use of 
overtime funds as a tool to manage its workload.
    \105\ For example, USCIS completed 15,904 Form I-765 C08 
renewals in July 2021. After applying overtime funds to Form I-765s, 
USCIS completed 23,987 and 24,267 Form I-765 C08 renewals in August 
and September 2021, respectively. However, USCIS returned to its 
prior completion rate in October 2021 (where USCIS completed 13,932 
C08 renewals) due to such overtime funds no longer being available 
in the new fiscal year. USCIS received additional appropriated 
funding for overtime in FY 2022 to apply toward backlog reduction 
efforts, but these funds only became available for operational use 
in early 2022.
    \106\ See, e.g., USCIS Policy Manual, Policy Alert (PA-2022-07), 
Updating General Guidelines on Maximum Validity Periods for 
Employment Authorization Documents based on Certain Filing 
Categories (Feb. 7, 2022), https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20220207-EmploymentAuthorizationValidity.pdf.
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1. Current Measures To Reduce the Backlog and Reduce Processing Times
    Addressing Form I-765 processing times is a priority for USCIS. 
Backlogs in general are a significant concern for the applicants who 
are applying for benefits with USCIS because, as the backlogs increase, 
applicants and petitioners experience longer wait times to receive a 
decision on their benefit requests. This is especially concerning where 
the backlog involves employment authorization, which is critical to 
applicants' and their families' livelihoods as well as U.S. employers' 
continuity of operations. USCIS understands the impact that delays in 
receiving decisions and documentation have on applicants and 
petitioners and is striving to address the backlogs and the resulting 
negative consequences through a number of measures, including but not 
limited to this TFR.
    USCIS continues to recover from the pandemic-related impacts on 
operations and revenue, leading to a gradually improving fiscal 
situation, return to stability, and renewed capacity to undertake 
initiatives to reduce backlogs. USCIS lifted the agency-wide hiring 
freeze in March 2021. With the hiring freeze lifted, USCIS was able to 
begin hiring staff in an attempt to return to pre-pandemic staffing 
levels.\107\ Initial hiring was largely internal in order to fill 
promotional vacancies, with public job announcements to hire from 
outside USCIS following. This effort's impact is not realized 
immediately, as it is lengthy, time-consuming, and ongoing.

[[Page 26627]]

The hiring process itself is lengthy as it includes posting the job 
announcement, reviewing resumes, providing qualified candidates' 
information to the hiring office, assessments, interviews, selections, 
and background checks prior to a new employee entering on duty. New 
hires then go through orientation, basic training, duty-specific 
training and mentoring. The entire process from posting to a new hire 
reaching full proficiency takes several months.
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    \107\ Such a long pause in hiring from May 1, 2020, to March 
2021 resulted in approximately 2,000 unfilled vacancies, out of 
approximately 20,000 positions across the agency. As of November 6, 
2021, USCIS estimates the number of vacancies had risen to 
approximately 3,000 due to primarily internal selections following 
the hiring freeze, although USCIS did also add some positions as 
well. USCIS estimates it will take the agency to the end of CY 2022 
to fill the current level of vacancies. While USCIS did receive $250 
million in funding from Congress for application processing, backlog 
reduction, and the refugee program in late September 2021, it will 
take time for such funding to translate to a significant increase in 
additional officers proficient at adjudicating and completing Form 
I-765 renewal applications. See Extending Government Funding and 
Delivering Emergency Assistance Act, 2022, Public Law 117-43 (Sept. 
30, 2021). USCIS has identified Form I-765 as well as Form I-485 and 
Form I-589 (which represent two of the three major filing categories 
seeking renewal EADs and eligible for automatic extension of the 
prior EAD) for inclusion in backlog reduction efforts funded in part 
by appropriations. The $250 million appropriated through Public Law 
117-43, however, will only partly fund the 1,316 positions needed 
for all of USCIS' backlog reduction initiatives; therefore, USCIS 
continues to seek additional funding as requested in the FY 2022 
President's Budget ($345 million).
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    USCIS is also in the process of developing a new Fee Rule to recoup 
adjudicatory costs incurred at current levels, and to support the 
agency's ability to match staffing levels with its workload in a 
sustainable way. To effect more immediate change with EAD renewals, 
USCIS reviewed its policies and procedures to update policy 
guidance,\108\ expanded use of overtime hours as funding permitted, and 
applied innovative approaches to backlog reduction using technology in 
strategic ways, which initially is showing promising results.\109\ In 
addition, USCIS is focused on addressing prolonged processing times 
affecting applications and petitions that form the basis of a Form I-
765 filing and, therefore, indirectly impact Form I-765 renewal 
processing times, such as in the case of asylum or adjustment of status 
applications where a Form I-765 filing is based on the continued 
pendency of such application.
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    \108\ See, e.g., USCIS Policy Manual, Policy Alert (PA-2021-25), 
Employment Authorization for Certain H-4, E, and L Nonimmigrant 
Dependent Spouses (Nov. 12, 2021), https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20211112-EmploymentAuthorization.pdf. See USCIS Policy Manual, Policy Alert 
(PA-2021-10), Employment Authorization for Certain Adjustment 
Applicants (June 9, 2021), https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20210609-EmploymentAuthorization.pdf. See USCIS Policy Manual, Policy Alert 
(PA-2022-07), Updating General Guidelines on Maximum Validity 
Periods for Employment Authorization Documents based on Certain 
Filing Categories (Feb. 7, 2022), https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20220207-EmploymentAuthorizationValidity.pdf.
    \109\ Efforts to improve timely processing and remove 
bureaucratic hurdles are underway. One of the first initiatives is 
to automatically identify pending applications that are no longer 
needed (for example, a Form I-765 based on a pending adjustment 
application is moot upon the applicant's adjustment of status to 
that of a lawful permanent resident) and close them, thus 
eliminating the need for an officer to review and allowing other 
applications to proceed to adjudication more quickly. While initial 
results of such initiatives are promising, it is too early to tell 
what the long-term, sustained impacts on processing times will be. 
USCIS continues to look for additional areas where systems can be 
used to identify and complete simple functions that free up officer 
resources for adjudicative work.
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    For example, an applicant seeking asylum is eligible for employment 
authorization on the basis of the pendency of the asylum 
application.\110\ USCIS currently grants employment authorization based 
on a pending asylum application in 2-year increments.\111\ If an asylum 
application is pending for up to 5 years or more, as is currently the 
case for some applications,\112\ then an applicant must file to renew 
employment authorization at least twice. If processing times for asylum 
applications were reduced to 3 years, the applicant would need only 
file to renew employment authorization once, saving USCIS adjudicatory 
resources.
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    \110\ An asylee cannot apply for initial employment 
authorization earlier than 150 calendar days after the date USCIS or 
the immigration court accepts the asylum application.
    \111\ This was the maximum time allowed under regulation until 
February 7, 2022, when the U.S. District Court for the District of 
Columbia vacated parts of 8 CFR 274a.12(c)(8) (``Employment 
authorization may be granted according to the provisions of 8 CFR 
208.7 of this chapter in increments to be determined by USCIS but 
not to exceed increments of two years.''). See Asylumworks, et al. 
v. Alejandro N. Mayorkas, et al., No. 20-cv-3815, 2022 WL 355213 
(D.D.C. Feb. 7, 2022). USCIS is considering what, if any, steps it 
may take in light of this ruling.
    \112\ The extended wait time for ayslum applications 
particularly affects many defensive asylum filings in immigration 
court. (A noncitizen may apply for asylum affirmatively with USCIS 
or defensively in immigration court.) As of December 31, 2021, there 
were 628,551 asylum applications pending in immigration courts. See 
Executive Office for Immigration Review Adjudication Statistics, 
https://www.justice.gov/eoir/page/file/1106366/download (last 
visited Apr. 14, 2022). This DOJ data also implies that 156,127 and 
90,880 cases were completed in FY2020 and 2021, respectively, or an 
average of 123,504 cases a year. In the first quarter of FY2022, 
42,090 cases were completed. If this rate continues, it would take 
approximately 4.2 years to complete the adjudication of the total 
628,551 asylum cases pending in the courts as of December 31, 2021.
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    Another area in which USCIS is actively prioritizing its workload 
is employment-based adjustment of status applications as backlogs in 
adjudication of these applications also have downstream effects on EAD 
application adjudications, as described above. While USCIS normally 
processes approximately 115,000 employment-based adjustment of status 
applications annually,\113\ generally to correspond with the number of 
available employment-based immigrant visas minus the number typically 
issued by Department of State annually, USCIS prioritized processing 
employment-based adjustment applications to maximize available visa 
usage in FY 2021. By the end of FY 2021, USCIS had processed and 
approved approximately 172,000 employment-based adjustment of status 
applications, an increase of approximately 50 percent above the typical 
baseline; \114\ however, approximately 257,000 remained unadjudicated, 
including approximately 75,000 impacted by priority date retrogressions 
that may leave them pending for many years, and thereby eligible for 
C09 EADs over this extended period.\115\ To the extent possible, USCIS 
is committed to prioritizing employment-based adjustment of status 
applications to utilize the available visa numbers each fiscal year; 
doing so relieves applicants from filing Forms I-765 to seek renewal 
EADs while their adjustment of status application remains pending since 
lawful permanent residents are employment authorized incident to 
status.\116\ Therefore, the more adjustment of status applications 
USCIS is able to process, the fewer Form I-765 renewal applications 
USCIS will receive (based on pending INA 245 adjustment of status 
applications).
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    \113\ See DHS Office of Immigration Statistics, 2019 Yearbook of 
Immigration Statistics, Table 6, Persons Obtaining Lawful Permanent 
Resident Status by Type and Major Class of Admission: Fiscal Years 
2010 2019 (Sep. 2020), https://www.dhs.gov/sites/default/files/publications/immigration-statistics/yearbook/2019/yearbook_immigration_statistics_2019.pdf.
    \114\ See News Release, USCIS Announces FY 2021 Accomplishments, 
(Dec. 15, 2021), https://www.uscis.gov/newsroom/news-releases/uscis-announces-fy-2021-accomplishments.
    \115\ Applicants from China and India seeking adjustment of 
status based on the employment-based third preference category 
experienced visa retrogression in their respective filing categories 
as of October 1, 2021, impacting approximately 75,000 applicants. 
For more information on visa retrogression, see https://www.uscis.gov/green-card/green-card-processes-and-procedures/visa-availability-priority-dates/visa-retrogression (last updated Mar. 8, 
2018). Based on a rate of approximately 8,000 visa numbers becoming 
available for these affected categories per year, as was the case in 
FY 2019, it may take more than 9 years for visas to become available 
for these approximately 75,000 applicants. In the interest of 
reducing the burden on both the agency and the public, on June 9, 
2021, USCIS increased the maximum validity period for initial and 
renewal EADs issued to applicants for adjustment of status under INA 
245 from 1 year to 2 years based on average processing times. See 
USCIS Policy Manual, Policy Alert, Employment Authorization for 
Certain Adjustment Applicants (Jun 9, 2021), https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20210609-EmploymentAuthorization.pdf. USCIS' return to its processing goal of 
3 months for Form I-765 renewal applications is critically important 
for such applicants who may rely on timely renewals multiple times.
    \116\ See 8 CFR 274a.12(a)(1).
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    DHS expects that USCIS' backlog reduction efforts in these areas 
will positively impact Form I-765 backlogs by reducing the volume of 
Form I-765 filings. However, we anticipate that the impact of these 
backlog reduction efforts will not be immediately felt by applicants 
with expiring or expired employment authorization. Therefore, DHS has 
determined that in the interim, urgent action is needed to address the

[[Page 26628]]

plight of a growing number of EAD renewal applicants who have 
experienced or may in the near future experience a gap in their 
employment authorization and/or EAD because of USCIS' unprecedented 
processing times.
2. Existing Automatic Extension Period of Up to 180 Days Temporarily 
Not Sufficient
    DHS is aware of the importance of employment authorization and EADs 
as evidence of employment authorization for applicants' and their 
families' livelihoods, as well as their U.S. employers' continuity of 
operations and financial health. DHS is also aware of the potential 
detrimental impact that gaps in employment authorization may have on an 
applicant's eligibility for future immigration benefits, should the 
applicant engage in unauthorized employment during the gap,\117\ and on 
the U.S. employer's responsibilities under the INA. DHS also 
acknowledges that the substantial increase in backlogs and prolonged 
processing times across USCIS-administered benefit requests are not the 
fault of applicants but have had and continue to have significant 
adverse consequences for applicants and employers awaiting a USCIS 
decision on pending Form I-765 renewal applications.
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    \117\ With certain exceptions, if a noncitizen continues to 
engage in or accepts unauthorized employment, the individual may be 
barred from adjusting status to that of a lawful permanent resident 
under INA 245. See INA 245(c)(2) and (c)(8), 8 U.S.C. 1255(c)(2) and 
(c)(8).
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    As noted, the current 180-day automatic extension under 8 CFR 
274a.13(d)(1) for certain applicants who have properly filed Form I-765 
for renewal of their employment authorization and/or EADs is an 
insufficient time period to ensure against lapses in employment 
authorization and/or EAD validity.\118\ In December 2020, the median 
processing time for Form I-765 renewal applications eligible for the 
automatic extension was 3.6 months (close to USCIS' processing goals), 
ranging from 2.5 months to 5 months.\119\ At the end of December 2020, 
there were approximately 3,300 applicants whose Form I-765 renewal 
applications were still pending past their 180-day auto-extension 
period.
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    \118\ See section II, Purpose of this Temporary Final Rule.
    \119\ See section II, Purpose of this Temporary Final Rule, 
Table 1. Recent Dramatic Growth in 50th and 93rd Percentile 
Processing Times for Form I-765 Renewal Applications Filed by Top 
Three Filing Categories.
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    However, Form I-765 processing times and Form I-765 renewal 
applications pending beyond the 180-day period increased rapidly in the 
second half of CY 2021 and continue to increase in CY 2022 despite 
backlog mitigation efforts. As of December 31, 2021, the processing 
time for EAD renewal applications (all categories) completed by USCIS 
ranged from 6.1 months (median) to 10.1 months (93rd percentile) and 
there were approximately 66,000 applicants whose Form I-765 renewal 
applications were still pending past their 180-day automatic extension 
period. This means that, as of December 31, 2021, approximately 66,000 
applicants--at no fault of their own and because of circumstances 
currently faced by USCIS--were not authorized to work and/or no longer 
had a valid EAD to evidence their employment authorization,\120\ 
potentially jeopardizing their families' livelihoods.
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    \120\ Of the 66,000 applicants, 63,000 fall into the C08, C09, 
and C10 categories and, therefore, are facing a gap of employment 
authorization. The remaining 3,000 applicants fall into the 
following EAD categories: Refugees (A03 under 8 CFR 274a.12(a)(3)), 
asylees (A05 under 8 CFR 274a.12(a)(5)), and withholding of 
deportation or removal beneficiaries (A10 under 8 CFR 
274a.12(a)(10)). Such applicants are still authorized for employment 
incident to status but would no longer have a valid EAD. For 
purposes of this rule's analysis, DHS has determined that it is 
appropriate to include the 3,000 applicants who are employment 
authorized incident to status given their reasonable reliance on 
USCIS' timely issuance of their renewal EADs. Also, it is unknown 
how many applicants in this group have in their possession 
acceptable alternative documentation they can show their employers 
in order to maintain their employment (e.g., Form I-94 or an 
unrestricted Social Security card together with an unexpired State-
issued driver's license pursuant to 8 CFR 274a.2(b)(1)(v)). 
Moreover, through its public outreach efforts, DHS has learned that 
job loss has affected this group on account of the lack of 
sufficient documentation to present to employers for Form I-9 
completion.

 Table 6--Number of Form I-765 Renewals Pending Past Their 180-Day Auto-
                            Extension Period
------------------------------------------------------------------------
                                        Median
                                      processing   Renewals pending past
                Date                     time         180-day period
                                       (months)
------------------------------------------------------------------------
December 31, 2020..................          3.6  3,300 renewal
                                                   applications
                                                   (approx.).
December 31, 2021..................          8.0  66,000 renewal
                                                   applications
                                                   (approx.).
------------------------------------------------------------------------

    This also means that a large majority of these workers, and their 
U.S. employers, would not be able to meet the verification or 
reverification requirement for completion of Employment Eligibility 
Verification (Form I-9),\121\ resulting in terminations and incurring 
the costs of finding replacement workers, if possible. If DHS does not 
immediately increase the 180-day automatic extension period, the total 
number of applicants with renewal applications pending past the 180-day 
auto-extension period is expected to increase by approximately 14,500 
per month.\122\ This estimated monthly increase of 14,500 applicants is 
based on recent trends.
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    \121\ All U.S. employers must properly complete Form I-9 for 
each individual they hire for employment in the United States. See 
I-9, Employment Eligibility Verification USCIS web page, https://www.uscis.gov/i-9 (last updated Apr 13, 2021).
    \122\ As noted elsewhere in this preamble, the number of 
applicants who face expiration of the up-to-180-day automatic-
extension each month is approximately 30,000. However, as some 
applicants who are already past the 180-day automatic extension 
period will receive final adjudication of their application each 
month, the total number of those in the population past the 180-day 
period is expected to increase by 14,500 each month rather than by 
30,000.
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    Although USCIS has been diligently trying to reduce the 
adjudication backlog and EAD processing times, USCIS is unable to 
quickly return to its processing goals due to the volume of pending 
cases, new filings that USCIS continues to receive, and time needed to 
increase staffing needs to meet existing demands. As of December 31, 
2021, USCIS had approximately 520,000 pending EAD renewal requests in 
automatic extension-eligible categories and continues to receive 
approximately 55,000 additional Form I-765 applications in automatic 
extension-eligible categories per month. These additional renewal 
applications are adding to the current backlog, given that USCIS 
currently completes approximately 33,000-34,000 such requests per 
month. Further, as of November 6, 2021, 905 out of 8,721 (or, 10% of) 
officer positions allocated to the Field Office Directorate (FOD) and 
the Service Center Operations Directorate (SCOPS) were vacant and USCIS 
estimates it may take at least until the end of CY 2022 for USCIS to 
fill such vacancies.\123\
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    \123\ As mentioned above in section II.D.1, USCIS had 
approximately 3,000 vacancies, 905 of which were officer positions 
in FOD and SCOPS, the two directorates that adjudicate Form I-765 
renewal applications filed in categories eligible for automatic 
extension of EADs. Even after USCIS fills an Immigration Services 
Officer (ISO) position, there is a delay between the time of hiring 
and the time the ISO is fully trained and able to complete 
adjudications to meet productivity targets.
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    The impact of the prolonged processing times is stark when 
considering the number of individuals who will lose employment 
authorization and/or EAD validity each month if immediate action is not 
taken. As indicated, the total number of renewal applications pending 
past the 180-day period, which was approximately 66,000 as of December

[[Page 26629]]

31, 2021, is expected to increase by approximately 14,500 each month; 
that monthly figure represents approximately 10,500 asylum applicants, 
3,000 adjustment of status applicants, and 1,000 suspension/
cancellation applicants per month.
    DHS therefore has determined that an automatic extension period of 
up to 180 days at 8 CFR 274a.13(d) is temporarily no longer sufficient 
to meet its original purpose and goal for which it was implemented: To 
prevent and/or mitigate the risk of gaps in employment authorization 
and documentation for a majority of eligible applicants. Due to the 
presently insufficient staffing levels, which may take USCIS at least 
until the end of CY2022 to fill and additional time to train, USCIS may 
be unable to significantly increase its rate of completion in the 
immediate term, and therefore, currently may be unable to meaningfully 
reduce the volume of pending cases while also keeping pace with the 
inflow of Form I-765 filings. While USCIS will continue to explore ways 
to improve adjudicative efficiencies in the short and long term, USCIS 
expects Form I-765 backlogs will continue in the immediate future as it 
works to implement changes to improve Form I-765 processing 
efficiencies, hire and train new officers, and take additional steps to 
reduce the backlog and processing times. This temporary and 
extraordinary circumstance has created an emergent and urgent situation 
for noncitizens and U.S. employers as gaps in employment authorization 
and documentation have a highly detrimental impact on noncitizen 
workers and their U.S. employers. This is taking place at a time when 
such employers already are facing unprecedented workforce disruptions 
due to the COVID crisis, which further underscores the importance of 
immediate action.\124\ While the high unemployment rate has declined 
significantly, the United States is now experiencing high demand for 
labor as compared to the available supply of workers. As of February 
2022, the labor force participation rate was at 62.3 percent, having 
recovered about 66 percent of what was lost at height of the COVID-19 
pandemic compared with the February 2020 rate of 63.4 percent.\125\
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    \124\ According to the U.S. Bureau of Labor Statistics (BLS), on 
the last business day of January 2022, there were 11.3 million job 
openings and 6.3 million unemployed people. See U.S. Department of 
Labor, U.S. Bureau of Labor Statistics, Job Openings and Labor 
Turnover--January 2022 (Mar. 9, 2022), https://www.bls.gov/news.release/pdf/jolts.pdf; U.S. Department of Labor, U.S. Bureau of 
Labor Statistics, The Employment Situation--February 2022 (Mar. 4, 
2022), https://www.bls.gov/news.release/pdf/empsit.pdf. From June 
2021 through January 2022, the ratio of unemployed persons per job 
opening was below 1.0, meaning that there were more job openings 
than individuals seeking work. For context, there were roughly 0.8 
unemployed persons per job opening in January and February 2020 
before COVID. U.S. Department of Labor, U.S. Bureau of Labor 
Statistics, Number of unemployed persons per job opening, seasonally 
adjusted (Jan. 2007 through Jan. 2022), https://www.bls.gov/charts/job-openings-and-labor-turnover/unemp-per-job-opening.htm (last 
visited Mar. 14, 2022). See also Christopher Decker, Lurking behind 
lackluster jobs gain are a stagnating labor market and the threat of 
omicron, The Conversation, Jan. 7, 2022, 12:50 p.m. EST, https://theconversation.com/lurking-behind-lackluster-jobs-gain-are-a-stagnating-labor-market-and-the-threat-of-omicron-174534; Ben 
Casselman, More quit jobs than ever, but most turnover is in low-
wage work., N.Y. Times, Jan. 4, 2022, https://www.nytimes.com/2022/01/04/business/economy/job-openings-coronavirus.html; Lucia 
Mutikani, U.S. labor market recovery gaining steam; unemployment 
rolls smallest in 52 years, Reuters, Feb. 24, 2022, 11:48 a.m. EST, 
https://www.reuters.com/business/us-labor-market-recovery-gaining-steam-unemployment-rolls-smallest-52-years-2022-02-24/.
    \125\ See U.S. Department of Labor, U.S. Bureau of Labor 
Statistics, Civilian labor force participation rate (Feb. 2002 
through Feb. 2022), https://www.bls.gov/charts/employment-situation/civilian-labor-force-participation-rate.htm (last visited Mar. 8, 
2022).
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3. Temporary 360-Day Increase Beyond 180 Days Needed for 540-Day Period
    DHS has determined that providing additional time beyond the 
current 180 days during which an eligible applicant's employment 
authorization and/or EAD are automatically extended is necessary to 
mitigate the risk to applicants of incurring a lapse in employment 
authorization or documentation while USCIS works toward reducing 
processing times.\126\ As stated above, USCIS receives approximately 
55,000 Form I-765 renewal requests per month and completes 
approximately 33,000-34,000 requests per month, leading to the growing 
backlog. Without intervention, this processing rate could result in a 
median processing time of 14.2 months for all Form I-765 renewals by 
the end of December 2022. Considering the current range of processing 
times, a significant number of these renewal applications likely would 
take longer than the 14.2-month median time, up to 18 months.\127\
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    \126\ DHS is applying this rule to all renewal EAD application 
categories eligible for automatic extension pursuant to 8 CFR 
274a.13(d), even though some of these categories currently 
experience processing times that do not raise a risk of the 
applicant experiencing a lapse in employment authorization or 
documentation. As stated earlier, 95 percent of applications fall 
within the C08, C09, and C10 categories. DHS has made this decision 
because it has determined that it would not be operationally 
practical for USCIS to implement a different approach; making 
distinctions among categories would cause confusion among employers 
and employees; and backlogs and processing times may yet increase 
for these other categories.
    \127\ The estimated processing time is calculated using the 
current number of pending renewal applications as of December 31, 
2021 (520,000), adding in the estimated 55,000 new incoming receipts 
each month, and subtracting the 34,000 estimated completions each 
month to estimate the pending inventory at the end of December 2022. 
Next, the USCIS cycle time methodology is applied to calculate the 
processing time statistic (see ``Cycle Time Methodology'' on the 
USCIS processing times website at https://egov.uscis.gov/processing-times/more-info (last visited Apr 19, 2022)). The upper range value 
of 18 months is estimated by multiplying the cycle time by 1.3 based 
on the cycle time methodology. Note that individual offices may have 
higher or lower processing times, but the general USCIS-wide 
processing times likely would fall in the 14- to 18-month range.
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    Based on the trend USCIS has observed in the growth of processing 
times for Form I-765 renewal applications in the past year (see section 
II.A.Table1 for more details), and USCIS' projection of similar growth 
through the end of CY 2022,\128\ DHS calculated that a temporary 
increase of 360 days (beyond the 180-day period) for a total of 540 
days, or approximately 18 months) is an appropriate increase of the 
automatic extension period. Such period better reflects current and 
potential processing times for Form I-765 renewals. By extending the 
automatic extension period, this TFR therefore is intended to reduce 
the potential for disruptions in employment authorization and EAD 
validity for those who otherwise qualify for an automatic extension 
while USCIS continues to work to reduce its processing times to return 
to its goal of processing Form I-765 within 3 months.
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    \128\ These projections are based on USCIS processes in place as 
of December 31, 2021, and do not account for other changes USCIS is 
exploring outside of this TFR and that may be implemented concurrent 
with this TFR. USCIS is committed to doing everything possible under 
the law and current resource availability to mitigate the impact of 
EAD renewal application processing delays on applicants.
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    To determine how long DHS should provide this temporary increased 
automatic extension period, DHS assessed the pending and incoming 
volume of Form I-765 renewal filings against USCIS' resources. As of 
December 31, 2021, USCIS had approximately 520,000 pending EAD renewal 
requests in automatic extension-eligible categories. To achieve USCIS' 
processing goal of 3 months,\129\ USCIS must keep pace with the 
incoming volume (in other words, complete approximately 55,000 Form I-
765 renewal requests in automatic

[[Page 26630]]

extension-eligible categories per month) in addition to reducing the 
pending volume of renewal requests from 520,000 to 150,000-
200,000.\130\ USCIS determined that, as of May 4, 2022, the maximum 
number of officer hours it can devote to Form I-765 renewal requests in 
the automatic extension-eligible categories is 217,800 per year, based 
on its resources and capacity. By comparison, USCIS devoted a total of 
approximately 432,500 officer hours to all Form I-765 adjudications in 
FY 2021.
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    \129\ USCIS has determined that a processing time of 3 months 
for Form I-765 renewals would suffice to prevent lapses in 
employment authorization for most applicants who are eligible for 
the up to 180-day automatic extension. See 80 FR at 81911 (AC21 
NPRM). See 81 FR at 82398 (AC21 Final Rule).
    \130\ USCIS estimates that 150,000-200,000 pending requests 
translates roughly to a 3-month processing time, as the figure 
reflects 3 months' worth of Form I-765 renewal receipts.
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    USCIS calculated that, if it applied 217,800 officer hours at 
approximately 15 minutes per Form I-765 \131\ per month, to keep pace 
with the incoming flow of 55,000 new renewal requests as well as to 
reduce the volume of pending requests from 520,000 to 150,000-200,000, 
it would take USCIS 540 days--or approximately 18 months--to reach its 
goal of processing Form I-765 renewal applications within 3 months. 
Therefore, DHS has concluded that the temporary 360-day increase to the 
automatic extension time period must be in place for 540 days for those 
with pending renewal applications during this period.
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    \131\ This figure is based on an analysis of historic rates of 
completion. Between FY 2019 and FY 2021, the total officer hours for 
all Form I-765 processing (initials and renewals for all categories, 
including non-automatic extension categories) ranged from 
approximately 460,000 (FY 2019) to 420,000 (FY 2021), the equivalent 
of approximately 38,300 to 35,000 officer hours per month to process 
approximately 153,200 to 140,000 cases per month. Therefore, each 
case took an average of 15-minutes to process. Based on the USCIS 
Volume Projection Committee forecasts, USCIS expects to receive 
about 2.2 million Form I-765s in FY 2022 and FY 2023. Using the 15-
minute per case factor, and based on the 2.2 million projections, 
USCIS would need to expend approximately 45,800 officer hours a 
month to meet incoming demand or increase adjudication efficiencies 
through hiring, resource allocation, and efficiency gains.
---------------------------------------------------------------------------

    Applicants who file a Form I-765 renewal application after this 
filing timeframe and who are eligible for an automatic extension of 
their employment authorization and/or EADs will receive the 180-day 
automatic extension period currently provided at 8 CFR 274a.13(d)(1). 
DHS expects that, by the close of the filing timeframe outlined in this 
temporary final rule, the usual 180-day automatic extension period will 
be sufficient to prevent applicants filing Forms I-765 renewal 
applications from incurring a lapse in employment authorization and/or 
EAD validity, as USCIS expects to have returned to achieving its 3-
month processing goal by then.
    This temporary final rule applies to three groups of applicants. 
First, the rule applies to those renewal applicants eligible for the 
automatic extension who already have filed their renewal Form I-765 
application, which remains pending as of the date this rule goes into 
effect, May 4, 2022, and whose EAD has not expired or whose current up 
to 180-day auto-extension has not yet lapsed, since this group is at 
immediate or near term risk of experiencing a gap in employment 
authorization and/or documentation. Second, the rule applies to new 
renewal applicants who file Form I-765 during the 18-month period 
following the rule's publication to avoid a future gap in employment 
authorization and/or documentation.\132\ Third, for those renewal 
applicants who already are experiencing a gap in employment 
authorization and/or EAD validity, fairness dictates that such renewal 
applicants also should receive the benefit of the increase in the 
automatic extension, to enable them to resume an additional period of 
employment authorization and/or EAD validity, since they were the first 
group to have been placed in a detrimental position on account of 
USCIS' long processing times. For these applicants, this TFR provides 
that employment authorization and/or validity of their EADs will resume 
beginning on the date the rule is published in the Federal Register, 
May 4, 2022, and continue for a period of up to 540 days from the date 
their employment authorization and/or EAD expired, as shown on the face 
of the EAD. However, in recognition of Congress' clear intent in the 
INA regarding unauthorized employment, including the accountability of 
employers that employ noncitizens who are not authorized to work in the 
United States,\133\ this TFR does not address periods of unauthorized 
employment.\134\ In other words, this rule does not cure any 
unauthorized employment that may have accrued prior to issuance of the 
rule.\135\
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    \132\ While USCIS expects to return to its 3-month processing 
goal by the end of the 18-month period, DHS will continue to provide 
eligible renewal applicants up to 540 days of automatic extension as 
outlined in this rule throughout the entirety of the 18-month period 
for ease of administrability, to mitigate the potential for 
confusion among the regulated public, and in recognition of the 
potential that circumstances outside of USCIS's control may 
frustrate this expectation. Providing a set amount of additional 
automatic extension time for a set time period is the least 
administratively burdensome approach, allowing the agency to focus 
its limited resources on addressing the lengthy processing times 
themselves. Additionally, DHS anticipates that this approach is the 
least burdensome for the public, including employees and employers 
as well, since the temporary solution remains clear, can be relied 
upon, and can be planned for, and otherwise operates in the same way 
as the existing automatic extension described in 8 CFR 
274a.13(d)(1). DHS acknowledges that the utility of the additional 
automatic extension time may diminish toward the end of the 18-month 
period (or sooner, if USCIS achieves its processing goals earlier 
than anticipated, due in part to backlog reduction efforts discussed 
in Section II.D.1. or to other factors yet unknown or a combination 
of the two). However, DHS believes that such consequence is 
acceptable and appropriately balances competing policy concerns 
because shorter processing times ultimately mean applicants will 
receive a decision on their Form I-765 renewal application sooner 
and, in that event, will rely less on the automatic extension 
period.
    \133\ See INA sec. 274A, 8 U.S.C. 1324a.
    \134\ By way of example, if an applicant timely filed a Form I-
765 renewal application that is still pending and the expiration 
date on the front of the applicant's EAD is June 1, 2021, then the 
applicant's 180-day automatic extension expired November 28, 2021. 
If the TFR is published on April 1, 2022, then the applicant's EAD 
automatically becomes valid from April 1, 2022, up to November 23, 
2022, which is 540 days after June 1, 2021, the expiration date on 
the face of the EAD. If the employee in this example worked without 
authorization between November 29, 2021, and March 31, 2022, 
however, the employee and employer may be subject to any 
consequences outlined in the law.
    \135\ For example, if an applicant timely filed a Form I-765 
renewal application that is still pending and the expiration date on 
the front of the applicant's EAD is June 1, 2021, then the 
applicant's 180-day automatic extension expired November 28, 2021. 
If the TFR is published and effective on April 1, 2022, then the 
applicant's EAD automatically becomes valid from April 1, 2022, up 
to November 23, 2022, which is 540 days after June 1, 2021, the 
expiration date on the face of the EAD. If the employee in this 
example worked without authorization between November 29, 2021, and 
March 31, 2022, however, the employee and employer would be subject 
to any consequences outlined in the law.
---------------------------------------------------------------------------

    In addition, DHS has determined that the temporary amendment made 
by this rule should remain in the Code of Federal Regulations (CFR) for 
an amount of time sufficient to cover the approximately 18-month period 
during which the up to 540-day automatic extension will be authorized, 
plus an additional 720 days so that the regulatory provision remains in 
the CFR for the entire time that applicants may be relying on this 
temporary increase to the regular automatic extension period.\136\ As 
such, this TFR will take effect on May 4, 2022, and will be removed 
from the CFR on October 15, 2025; that is, approximately 3\1/2\ years 
(or 1,260 days) after the rule takes effect, although no new 
beneficiaries will receive a 540-day automatic extension after October 
26, 2023. Further, as is consistent with current guidance, applicants 
should file a renewal Form I-765 no earlier than 180 days prior to the 
expiration date of their EAD.
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    \136\ 720 days is the amount of time needed to cover the up to 
540-day automatic extension and to account for the fact that renewal 
applicants may file their EAD renewal application up to 180 days 
before their EAD expires.

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[[Page 26631]]

[GRAPHIC] [TIFF OMITTED] TR04MY22.000

IV. Temporary Regulatory Change: 8 CFR 274a.13(d)(5)

    DHS is amending 8 CFR 274a.13(d) to add a new paragraph (5) that 
will be in effect temporarily until October 15, 2025.\137\ Under the 
new paragraph, DHS is increasing the automatic extension period for 
employment authorization and/or EAD validity of up to 180 days 
(described in 8 CFR 274a.13(d)(1)) to a period of up to 540 days for 
renewal applicants eligible to receive an automatic extension who have 
a timely filed Form I-765 renewal application pending during the 18-
month \138\ period beginning May 4, 2022, and ending October 26, 2023. 
After the 18-month period, automatic extensions of employment 
authorization and EAD validity will revert to the up to 180-day period 
for those eligible applicants who timely file renewal Form I-765 
applications after October 26, 2023. The increased automatic extension 
period will apply to eligible renewal applicants who timely file their 
Forms I-765 on or before the last day of the 18-month period, even if 
filed prior to May 4, 2022. In addition, for renewal applicants whose 
Forms I-765 remain pending but who are no longer within the up to 180-
day automatic extension period on or before May 4, 2022, DHS has 
determined that, in the interest of fairness, such renewal applicants 
automatically will resume employment authorization and/or the validity 
of their EADs beginning on the effective date of this TFR, May 4, 2022, 
and up to 540 days from the expiration of their employment 
authorization and/or EAD.\139\
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    \137\ The rule will be in effect for approximately 3\1/2\ years, 
after which paragraph (d)(5) will terminate automatically. As 
explained earlier in the preamble, this effective date period, while 
lengthy, is necessary so that those eligible who file a Form I-765 
renewal application on the last available day of the 18-month period 
during which the increased automatic extension period is available 
and who qualify for an automatic extension will have the full 
benefit of the up to 540-day extension period.
    \138\ For ease of reference, DHS sometimes refers to the 
approximate time period of 18 months. However, the precise number of 
days is 540.
    \139\ If a renewal applicant whose employment authorization and/
or EAD validity has lapsed on or before the date this rule goes into 
effect, May 4, 2022, and the lapse is 540 days or more, then such 
applicant will not receive any additional employment authorization 
and/or EAD validity under this rule. DHS anticipates that very few 
applicants will be in this situation.
---------------------------------------------------------------------------

    Similar to the 180-day automatic extension period provided by 8 CFR 
274a.13(d)(1), the increased automatic extension period of up to 540 
days established by this TFR generally will automatically terminate the 
earlier of up to 540 days after the expiration date of the EAD, or upon 
issuance of notification of a denial on the Form I-765 renewal request 
even if this date is after October 26, 2023.
    Moreover, 8 CFR 274a.13(d)(5) will remain in the CFR for an 
additional 720 days after this 540-day period, until October 15, 2025, 
to ensure that renewal applicants who are already within their up to 
540-day automatic extension period as of October 26, 2023, will not get 
cut off from any remaining employment authorization and/or EAD validity 
that is over 180 days (the normal automatic extension period under 8 
CFR 274a.13(d)(1) but instead will be able to take full advantage of 
the 540-day period.
    Similar to 8 CFR 274a.13(d)(4), this TFR provides that an EAD that 
appears on its face to be expired is considered unexpired under this 
rule for up to 540 days from the expiration date on the front of the 
EAD when combined with a Notice of Action (Form I-797C) indicating 
timely filing of the EAD renewal application and the same employment 
eligibility category as stated on the facially expired EAD (or in the 
case of an EAD and I-797C notice that each contains either an A12 or 
C19 TPS category code, the category codes need not match). While the 
current provision at 8 CFR 274a.13(d)(4), and, likewise, the provision 
in this TFR, do not require that qualifying Notices of Action specify 
the automatic extension period, in practice, USCIS issues a Form I-797C 
Notice of Action to all renewal applicants with general information 
regarding who is eligible for an automatic extension and currently 
includes an explanation of the up to 180-day automatic extension 
period. On and after May 4, 2022, USCIS plans to issue Form I-797C 
Notices of Action with an explanation of the up to 540-day automatic 
extension period. USCIS does not plan to issue updated Form I-797C 
notices to eligible applicants who filed their Form I-765 renewal 
application before May 4, 2022. However, even Form I-797C notices that 
refer to a 180-day automatic extension still meet the regulatory 
requirements.

[[Page 26632]]

Therefore, individuals who show Form I-797C notices that refer to a 
180-day extension, along with their qualifying EADs, still receive the 
up to 540-day extension under this rule. USCIS will update the web page 
on the USCIS website that is referenced in the current Form I-797C 
notice to reflect the change in the automatic extension period. The 
public should refer to this web page when determining whether a Form I-
797C Notice of Action, if presented with the expired EAD, is acceptable 
for Form I-9 or other purposes, such as to obtain benefits. Employers 
should attach a copy of the web page with the employee's Form I-9 to 
document the extension of employment authorization and/or EAD validity. 
USCIS will also update I-9 Central on the USCIS website to provide 
employees and employers with specific guidance on Form I-9 completion, 
including any required notations indicating the above-described 
extension of employment authorization and/or EAD validity, in such 
cases. If a benefit-granting agency accepts EADs, then the agency 
should accept the EADs that are automatically extended under this rule. 
The up to 540-day extension under this rule applies even if a Form I-
797C notice refers to a 180-day extension.
    This rule does not modify the current requirements an employer must 
follow for Form I-9 at 8 CFR 274a.2(b)(1)(vii) that apply to automatic 
extensions, except that this rule temporarily replaces ``180'' with 
``540'' in its reference to the maximum number of days for the 
automatic extension period. Therefore, when an employee chooses to use 
an EAD and Form I-797C receipt notice as provided under this rule to 
complete Form I-9 for new employment, the employee and employer should 
use the extended expiration date to complete Section 1 (if applicable) 
and Section 2 of the Form I-9 and reverify no later than the date that 
the automatic extension period expires.\140\ For current employment, 
the employer should update the previously completed Form I-9 to reflect 
the extended expiration date based on the automatic EAD extension while 
the renewal is pending and reverify no later than the date that the 
automatic extension expires.\141\ For renewal applicants with pending 
Forms I-765 who experienced a lapse in employment authorization and/or 
EAD validity prior to the effective date of this rule, May 4, 2022, yet 
resume a period of employment authorization and/or EAD validity under 
this rule, and are rehired by the same employer, their employers must 
complete Form I-9 by treating the individual's employment authorization 
as having previously expired pursuant to 8 CFR 274a.2(c)(1)(ii) but 
have a choice of either reverifying employment authorization on the 
employee's Form I-9 or completing a new Form I-9.\142\
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    \140\ See 8 CFR 274a.2(b)(1)(vii). See also https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-
m-274/40-completing-section-2-of-form-i-9/44-automatic-extensions-
of-employment-authorization-documents-eads-in-certain-circumstances 
(last updated Nov. 16, 2021).
    \141\ Id.
    \142\ See 8 CFR 274a.2(c).
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    Under this Temporary Final Rule, just as under existing 8 CFR 
274a.13(d)(3), DHS will retain the ability to otherwise terminate any 
employment authorization or EAD, or extension period for such 
employment authorization or document, by written notice to the 
applicant, by notice to a class of noncitizens published in the Federal 
Register, or as provided by statute or regulation, including 8 CFR 
274a.14.\143\
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    \143\ Therefore, for example, in situations where the underlying 
status that provides employment authorization would expire prior to 
540 days, USCIS may include specific information on the applicant's 
Form I-797C receipt notice as to how long the automatic extension of 
the individual's EAD will last. More specifically, in the case of a 
TPS beneficiary who files a Form I-765 for a renewal EAD, such TPS 
beneficiary would not receive the full 540 days of EAD auto-
extension where the relevant TPS country designation expires prior 
to that 540-day point.
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V. Regulatory Requirements

A. Administrative Procedure Act

    DHS is issuing this rule without prior notice and an opportunity to 
comment and with an immediate effective date pursuant to the 
Administrative Procedure Act's (APA's) ``good cause'' exception. 5 
U.S.C. 553(b)(B) and (d)(3). Agencies may forgo notice-and-comment 
rulemaking and a delayed effective date when a rulemaking is published 
in the Federal Register, because the APA provides an exception from 
those requirements when an agency ``for good cause finds . . . that 
notice and public procedure thereon are impracticable, unnecessary, or 
contrary to the public interest.'' 5 U.S.C. 553(b)(B); see also 5 
U.S.C. 553(d)(3). Additionally, on multiple occasions, agencies have 
relied on this exception to promulgate both communicable disease-
related \144\ and immigration-related \145\ interim rules. The good 
cause exception for forgoing notice-and-comment rulemaking ``excuses 
notice and comment in emergency situations, or where delay could result 
in serious harm.'' Jifry v. FAA, 370 F.3d 1174, 1179 (D.C. Cir. 2004); 
Am. Fed. of Gov't Emps. v. Block, 655 F.2d 1153, 1156 (D.C. Cir. 1981) 
(``As the legislative history of the APA makes clear, moreover, the 
exceptions at issue here are not `escape clauses' that may be 
arbitrarily utilized at the agency's whim. Rather, use of these 
exceptions by administrative agencies should be limited to emergency 
situations . . . .''). Furthermore, notice and comment is impracticable 
under the APA, when an agency finds that due and timely execution of 
its functions would be impeded by the notice requirement under the APA, 
and for example, an investigation into the facts shows that a new rule 
must be put in place immediately to avert some type of emergency.\146\ 
Courts have held that impracticability ``is inevitably fact- or 
context-dependent.'' \147\ Although the

[[Page 26633]]

good cause exception is ``narrowly construed and only reluctantly 
countenanced,'' Tenn. Gas Pipeline Co. v. FERC, 969 F.2d 1141 (D.C. 
Cir. 1992), DHS has invoked the exception appropriately in this case 
given the totality of the circumstances in which this TFR is 
implemented: \148\ Providing advance notice and comment would be 
impracticable because doing so would result in serious harm, for the 
reasons set forth below.
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    \144\ HHS Control of Communicable Diseases; Foreign Quarantine, 
85 FR 7874 (Feb. 12, 2020) (interim final rule to enable the CDC 
``to require airlines to collect, and provide to CDC, certain data 
regarding passengers and crew arriving from foreign countries for 
the purposes of health education, treatment, prophylaxis, or other 
appropriate public health interventions, including travel 
restrictions''); Control of Communicable Diseases; Restrictions on 
African Rodents, Prairie Dogs, and Certain Other Animals, 68 FR 
62353 (Nov. 4, 2003) (interim final rule to modify restrictions to 
``prevent the spread of monkeypox, a communicable disease, in the 
United States'').
    \145\ See, e.g., Visas: Documentation of Nonimmigrants Under the 
Immigration and Nationality Act, as Amended, 81 FR 5906, 5907 (Feb. 
4, 2016) (interim rule citing good cause to immediately require a 
passport and visa from certain H-2A Caribbean agricultural workers 
to avoid ``an increase in applications for admission in bad faith by 
persons who would otherwise have been denied visas and are seeking 
to avoid the visa requirement and consular screening process during 
the period between the publication of a proposed and a final 
rule''); Suspending the 30-Day and Annual Interview Requirements 
From the Special Registration Process for Certain Nonimmigrants, 68 
FR 67578, 67581 (Dec. 2, 2003) (interim rule claiming the good cause 
exception for suspending certain automatic registration requirements 
for nonimmigrants because ``without [the] regulation approximately 
82,532 aliens would be subject to 30-day or annual re-registration 
interviews'' over a 6-month period).
    \146\ See Util. Solid Waste Activities Grp. v. E.P.A., 236 F.3d 
749, 754-55 (D.C. Cir. 2001)(citations omitted) (the Attorney 
General's Manual explains ``that a situation is `impracticable' when 
an agency finds that due and timely execution of its functions would 
be impeded by the notice otherwise required in [Sec.  553], as when 
a safety investigation shows that a new safety rule must be put in 
place immediately.).
    \147\ Mid-Tex Electric Coop. v. FERC, 822 F.2d 1123, 1132 (D.C. 
Cir. 1987). Examples where courts have found notice-and-comment 
rulemaking impracticable include: where air travel security agencies 
would be unable to address threats posing ``a possible imminent 
hazard to aircraft, persons, and property within the United 
States,'' Jifry v. FAA, 370 F.3d 1174,1179 (D.C. Cir. 2004); if ``a 
safety investigation shows that a new safety rule must be put in 
place immediately,'' Util. Solid Waste Activities Grp. v. EPA, 236 
F.3d, 749, 755 (D.C. Cir. 2001)(ultimately finding that not to be 
the case and rejecting the agency's argument); or if a rule was of 
``life-saving importance'' to mine workers in the event of a mine 
explosion, Council of the S. Mountains, Inc. v. Donovan, 653 F.2d 
573, 581 (D.C. Cir. 1981) (describing that circumstance as ``a 
special, possibly unique, case''). This prong sets a high bar for 
the agency to meet.
    \148\ See National Women, Infants, & Children Grocers Ass'n v. 
Food & Nutrition Service, 416 F. Supp. 2d 92, 108 (D.D.C. 2006) 
(``[H]aving examined the totality of circumstances in which the 
interim rule was promulgated, the Court finds that the FNS' 
invocation of the good cause exception is justified.'').
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    As discussed earlier in this preamble, the untenable situation that 
applicants and their employers are facing is the result of several 
converging factors affecting USCIS operations that were compounded by 
the COVID-19 national health emergency. USCIS faced an overall higher 
level of adjudicatory workload, coupled with insufficient resources to 
complete the work, which resulted in the significant increase in USCIS 
processing times for Form I-765 applications (initials and renewals). 
Staffing shortfalls mean that the workforce cannot keep pace with these 
operational strains at present, and staffing issues cannot immediately 
be remedied.\149\ While the agency had hoped to overcome the effects of 
the factors adversely affecting processing times by using operational 
and other measures, these measures did not produce effects as fast as 
the agency had hoped, as some of the corrective measures are lengthy, 
time-consuming, and ongoing. Unfortunately, USCIS' previous financial 
strains, including a preliminarily enjoined 2020 Fee Rule, continuing 
workforce shortfalls due to a previously threatened furlough, 
attrition, a hiring freeze, and an unusual spike and sustained increase 
in filings at a rate above that which USCIS can match continue to 
impact processing times for renewal Forms I-765.
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    \149\ As explained in the preamble, increasing staffing levels 
and the agency's capacity are closely tied to the agency's ability 
to recoup adjudicatory costs through a fee rule, overcoming the 
effects of the hiring freeze and pandemic related consequences, and 
backlog reduction efforts. However, none of the efforts undertaken 
by the agency are realized immediately as these processes are 
lengthy, time-consuming, and ongoing.
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    USCIS has been diligently taking steps, many of which had generally 
been effective in the past, to address these factors and improve 
adjudicative efficiency after the surge in EAD renewal applications in 
March and April of 2021, while, at the same time also attending to 
emergent and other critical demanding obligations of the agency. These 
steps included applying overtime funds to the Form I-765 renewal 
workload in an attempt to control the growing backlog, and exploring 
programmatic improvement initiatives for the adjudication of Form I-765 
applications overall. However, although these measures initially showed 
some success, it has become apparent that USCIS' limited resources are 
insufficient to address the immediate situation. With the incoming 
volumes of Form I-765 renewal filings showing no sign of slowing, USCIS 
assesses that it will not be able to avert the impending crisis of more 
renewal applicants experiencing gaps in employment authorization and/or 
documentation, and that such gaps' length in time are growing. As a 
result, USCIS has determined that until processing times can be reduced 
significantly, an increase in the automatic extension period is needed 
as soon as possible to avert imminent harm. This rule is imperative to 
provide an interim measure for thousands of renewal applicants who are 
facing imminent job loss through no fault of their own, and thousands 
who have already experienced a lapse in employment authorization and/or 
EAD validity despite USCIS' best efforts to employ operational measures 
to avoid this result.
    As explained throughout this preamble, and as of December 31, 2021, 
the impact is significant. USCIS data show that approximately 66,000 
renewal applications remained unadjudicated beyond the automatic 
extension period of 180 days under 8 CFR 274a.13(d)(1). Therefore, the 
individuals who filed those renewal applications and relied on the 
automatic extension to maintain employment already would have 
experienced job loss as a result of the lack of employment 
authorization and/or EAD validity. Of the approximately 66,000 renewal 
applicants in this situation, 58 percent are asylum applicants, a 
particularly vulnerable population. Continuous employment authorization 
during the pendency of an asylum application is vital for asylum 
seekers in the United States, given that they need employment 
authorization not just to work but also to access services and other 
resources required to pursue their asylum applications before USCIS or 
EOIR, which are often costly. Therefore, this entire group of renewal 
applicants needs immediate help via this rulemaking so these applicants 
can regain employment authorization and/or EAD validity and rejoin the 
workforce in order to continue to make a living to sustain their 
families.
    Given that renewal applications continue to be filed--USCIS 
receives about 55,000 new renewal Forms I-765 in automatic extension-
eligible categories per month--the backlog is expected to increase and, 
with it, the number of renewal applicants who could lose their ability 
to be employed and to support themselves and their families.\150\ DHS 
estimates that approximately 14,500 renewal applicants per month will 
join the group of approximately 66,000 renewal applications who faced a 
lapse in employment authorization and/or EAD validity as of December 
2021.\151\ Furthermore, data estimates show that an estimated 266,841 
to 375,545 renewal applicants could lose their employment authorization 
and/or EAD validity over the next 18 months if this rule is not 
promulgated immediately.
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    \150\ As explained in the preamble, certain applicants within 
the affected population, including those who are employment 
authorized incident to status or non-working adults and children, 
may not necessarily lose their employment authorization after the 
180-day automatic extension period is exhausted, but their EADs 
become invalid so that they can no longer use them for other 
purposes, such as an identification document or as proof for 
receiving State or local public benefits to the extent eligible, in 
addition to not having proof of employment authorization for Form I-
9 purposes.
    \151\ See USCIS' analysis outlined in the preamble at section 
IV.B, ``Executive Order 12866 (Regulatory Planning and Review) and 
Executive Order 13563 (Improving Regulation and Regulatory 
Review),'' regarding the affected population.
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    Considering the total population potentially impacted by this rule, 
DHS estimates that, with the implementation of this rule, approximately 
$3,098 million in labor earnings for renewal applicants would be 
stabilized and not forgone.\152\ In other words, this rule will 
preserve an estimated total of $3,098.0 million in labor earnings for 
the estimated 266,841 to 375,545 affected renewal applicants. Any delay 
in action such as by providing notice and comment, therefore, would 
raise the imminent threat and create severe adverse consequences to 
labor earnings

[[Page 26634]]

and the financial well-being of applicants and their families. DHS 
believes that with the immediate implementation of this rulemaking, the 
potential for additional gaps in employment authorization and/or EAD 
validity, job loss, and financial uncertainty will be reduced 
significantly for Form I-765 renewal applicants and their families 
while USCIS works toward implementing its backlog reduction plan to 
return processing times to the pre-emergency 3-month average.
---------------------------------------------------------------------------

    \152\ Labor earnings includes wages and salaries as well as 
benefits (e.g., paid leave, supplemental pay, insurance). Amount 
shown as total present value at a 7 percent discount rate.
---------------------------------------------------------------------------

    DHS believes that the imminent and continuing impact on employers' 
business continuity and related effects caused by gaps in employment 
authorization and/or EAD validity additionally justify that DHS issue 
this temporary final rule. The imminent or ongoing gaps in employment 
authorization and/or EAD validity being experienced by renewal 
applicants through no fault of their own adversely affect not only 
applicants and their families, but also employers, which experienced 
difficulties in maintaining their workforce as a result of the 
pandemic, and continue to face a variety of challenges as the United 
States progresses on its path to recovery from the pandemic, such as 
more job openings than available workers.\153\ To ensure continuity of 
operations, businesses and entities may have made decisions in reliance 
on the possibility that eligible renewal Form I-765 applicants may 
receive renewals of employment authorization and documentation (for 
example, by establishing business contracts, applying for grants, 
signing leases, and commencing development of product lines). As DHS 
predicts that it will take approximately 18 months to return to normal 
processing levels, DHS seeks to mitigate the potential that additional 
businesses and entities may temporarily be adversely impacted by 
required terminations as a result of gaps in employment authorization 
or documentation.
---------------------------------------------------------------------------

    \153\ See FN 124.
---------------------------------------------------------------------------

    Such adverse impacts on employers and businesses, who have already 
experienced significant economic harm on account of the pandemic, gives 
cause to address an emergency situation as quickly as possible to 
prevent further imminent harm to an increased number of renewal 
applicants and their employers. While the number of businesses affected 
is unknown, DHS's analysis suggests that, if this rule were not 
implemented immediately, businesses that employ affected EAD holders 
would incur approximately $4,037.6 million in labor turnover costs for 
the separation and replacement these employees.\154\ This amount 
represents significant cost savings to businesses under this rule. The 
longer this rule is delayed, the greater the costs to business because 
of applicants' gaps in employment authorization and/or documentation 
and the resulting disruptions in business continuity that employers 
will experience, defeating the very purpose 8 CFR 274a.13(d) and this 
rulemaking, creating 8 CFR 274a.13(d)(5), seek to prevent.\155\ That 
is, because of the serious harm that would be caused to applicants and 
employers described throughout this rulemaking, providing notice and 
comment, as well as a 60-day effective date delay,\156\ would expose 
the public to the harm that 8 CFR 274a.13(d) and this rulemaking are 
trying to prevent, and would thereby defeat the very purpose of 
rulemaking.
---------------------------------------------------------------------------

    \154\ Turnover costs are calculated as a percent of annual 
salary. Amount shown as total present value, using a 7 percent 
discount rate.
    \155\ As explained elsewhere in this preamble, 8 CFR 274.13(d) 
was proposed in 2016 to mitigate the risk of gaps in employment 
authorization and required documentation, and its related 
consequences for eligible renewal applicants and their employers. 
See AC21 NPRM, 80 FR 81899, 81927. In the AC21 NPRM, DHS explained 
that it believed the 180-day auto extension to be a reasonable and 
effective amount of time to mitigate that risk. See 80 FR at 81927 
(``DHS believes that this time period [of up to 180 days] is 
reasonable and provides more than ample time for USCIS to complete 
the adjudication process based on USCIS's current 3-month average 
processing time for Applications for Employment Authorization.''). 
After having received and carefully considered public comments, DHS 
published the final rule. Thus, the concept of the up to 180-day 
automatic extension has been tested in the public sphere already and 
gone through proper rulemaking. This TFR is merely a temporary 18-
month deviation from the 180-day timeframe, warranted by this 
untenable situation.
    \156\ While the effective date for a substantive rule under the 
APA is not less than 30 days, 5 U.S.C. 553(d), this rule is a major 
rule subject to the Congressional Review Act, codified at 5 U.S.C. 
801 through 808. Under 5 U.S.C. 801, a major rule's effective date 
generally is delayed for at least 60 days. Under the APA and the 
Congressional Review Act, however, the agency is exempt from the 
delayed effective date requirements of both acts if the agency 
provides good cause. See 5 U.S.C. 553(d) and 808(2).
---------------------------------------------------------------------------

    Furthermore, DHS believes that given the imminent and continuing 
impact of gaps in employment authorization and/or EAD validity on 
renewal applicants, their families, employers, and employers' business 
continuity make following ordinary notice and timing impracticable. As 
a DHS component agency, one of USCIS' primary missions is to administer 
immigration benefits, including adjudicating requests for and issuing 
employment authorization and/or EADs.\157\ Under the INA, the Secretary 
is authorized to take necessary regulatory action to carry out this 
mission effectively. As established above, the current situation is 
untenable for renewal applicants and their employers. Given the current 
processing backlogs and delays, USCIS also predicts that it will take 
approximately 18 months to revert to normal processing timeframes, a 
significant portion of which would be taken up by notice and comment 
rulemaking and the 60-day publication requirement. Thus, given the 
immediate harm that these backlogs create for renewal applicants and 
employers alike, the notice and comment requirement, and associated 
time requirements, would not allow USCIS to timely avert the harms 
discussed in this rule. Providing notice and comment rulemaking and 
complying with the 60-day publication requirement is therefore simply 
impracticable as it would impede USCIS functions, and has a significant 
impact on applicants and employers.
---------------------------------------------------------------------------

    \157\ As of March 1, 2003, the former INS ceased to exist as an 
agency within the United States Department of Justice, and its 
functions respecting applications for immigration benefits (such as 
the adjudication of requests for employment authorization and/or 
EADs) were transferred to United States Citizenship and Immigration 
Services in the United States Department of Homeland Security. See 
Homeland Security Act of 2002, Public Law 107-296, sec. 471(a), 
(Nov. 25, 2002); 68 FR10922 (Mar. 6, 2003). Additionally, under the 
Homeland Security Act sec. 101(b)(1)(F), 6 U.S.C. 111(b)(1)(F), 
USCIS, as a DHS component, should exercise this function in a manner 
that ensures that the overall economic security of the United States 
is not diminished by efforts, activities, and programs aimed at 
securing the homeland.
---------------------------------------------------------------------------

    Additionally, DHS believes that issuing this temporary rule is a 
reasonable approach to implement this temporary measure, which will be 
effective for only a finite period. Specifically, the up to 360-day 
increase of the current 180-day automatic extension period via the 
amendments to DHS regulations made by this rule are limited to 
individuals who are seeking a Form I-765 renewal application within the 
next 18 months from the rule's publication, while the amendments to DHS 
regulations will only remain in place for a total of 1,260 days (i.e., 
3\1/2\ years). These time periods are suitable to avert imminent harm 
to a specific class of individuals and their employers.\158\ As 
demonstrated in the

[[Page 26635]]

preamble, extending the automatic extension provision temporarily by up 
to an additional 360 days for a period of 540 days (i.e., approximately 
18 months) directly corresponds to USCIS' data-driven estimates on how 
long USCIS will need to reduce the processing times of backlogged Form 
I-765 renewal applications. In addition, DHS has determined that the 
rule will need to remain in the Code of Federal Regulations for another 
720 days so that eligible prior renewal applicants can take advantage 
of the full up to 360-day increase if necessary, even after the 18-
month window for the increase closes.\159\ After this period, the 
amendments made by this rule will expire automatically. Therefore, this 
rulemaking is limited in time and scope in order to prevent harm to the 
public.
---------------------------------------------------------------------------

    \158\ Courts have been more inclined to finding good cause for 
issuance of TFRs if the effect is limited in scope and duration. 
See, e.g., San Diego Navy Broadway Complex Coalition v. U.S. Coast 
Guard, 2011 WL 1212888, *6 (S.D. Cal. 2011) (finding good cause for 
issuance of a TFR because agency limited its effect for several 
months and also explicitly indicated its intent to initiate notice-
and-comment rulemaking); Nat'l Fed'n Emps v. Divine, 671 F.2d 607 
(D.C. Cir. 1982) (finding that OPM's emergency action was within the 
scope of the ``good cause'' exception as the agency's action of 
postponing the open benefits season was required by events and 
circumstances beyond its control and necessary because not delaying 
would have been not only impracticable but also potentially 
harmful); Council of Southern Mountains, Inc. v. Donovan, 653 F.2d 
573 (D.C. Cir. 1981) (upholding Mine Safety and Health 
Administration rule delaying the effective date without notice and 
comment).
    \159\ DHS believes that 720 days is the amount of time needed to 
cover the up to 540-day automatic extension and to account for the 
fact that renewal applicants may file their EAD renewal application 
up to 180 days before their EAD expires.
---------------------------------------------------------------------------

    Bypassing the ordinary APA procedures will allow USCIS immediately 
to reduce the dire impact the current circumstances create for affected 
noncitizens and their employers--circumstances that were and continue 
to be beyond the control of renewal applicants and their U.S. 
employers. As described above and throughout this preamble, while USCIS 
has been taking active measures to reduce the backlog and return to its 
processing goal of an average of 3 months as soon as possible,\160\ 
backlogs and processing times grew to such an extent due to the COVID-
19 pandemic's impacts on agency operations and finances, in combination 
with other factors such as filing surges, staffing shortages, and a 
sustained increase in the number of filings in other benefit request 
types such as adjustment of status and asylum that impact EAD receipts, 
that those measures were insufficient to avoid the current 
circumstances.
---------------------------------------------------------------------------

    \160\ These measures include staffing increases and 
reallocations to focus on Form I-765, backlog reduction initiatives 
that apply technology in strategic ways to more efficiently 
adjudicate Forms I-765, new monthly completion goals, and policy 
changes to improve efficiency for the agency and eliminate 
unnecessary hurdles for applicants. In addition, USCIS is focused on 
addressing prolonged processing times in other areas impacting Form 
I-765 overall processing times also, for example, in cases where a 
Form I-765 filing is based on an underlying benefit request, such as 
an application for asylum or to adjust to lawful permanent resident 
status.
---------------------------------------------------------------------------

    USCIS expects that its backlog reduction efforts will allow the 
agency to return to its 90-day processing goal before this TFR expires. 
In the meantime, this TFR will mitigate harm to individuals, families, 
and businesses while USCIS works to rebound from the adverse impacts of 
COVID-19, staffing shortages, and financial strains. A subsequent, 
extraordinary surge and sustained increase in Form I-765 submissions 
further undermined those efforts such that the only practicable 
solution to avoid placing thousands of renewal applicants in the 
untenable situation of losing employment authorization and/or EAD 
validity and experiencing employment termination is this time-limited 
and narrowly drawn rule. Data show that if this rule is implemented 
without notice and comment, DHS will have mitigated gaps in employment 
authorizations for virtually all the affected population.\161\
---------------------------------------------------------------------------

    \161\ See USCIS' analysis outlined in the preamble at section 
IV.B, ``Executive Order 12866 (Regulatory Planning and Review) and 
Executive Order 13563 (Improving Regulation and Regulatory 
Review).''
---------------------------------------------------------------------------

    This temporary measure is consistent with the intent of current 8 
CFR 274a.13(d). In this rule, DHS is simply temporarily increasing the 
180-day timeframe for those already eligible for an automatic 
extension. DHS neither makes additional categories eligible nor alters 
existing procedures through this TFR. Therefore, the increase in the 
automatic extension of employment authorization and/or EAD is not just 
highly effective but also limited in scope and application. For this 
additional reason, DHS believes that the good cause exception is 
properly invoked in this rulemaking.
    In sum, for the reasons stated, including the need to be responsive 
to the operational demands and challenges facing USCIS to reduce its 
processing times, renewal applicants' needs to avoid gaps in employment 
and/or documentation, and employers' need to maintain their workforce, 
DHS believes that, based on the totality of the circumstances in which 
this TFR is issued, it has good cause to bypass ordinary notice-and-
comment procedure for this temporary action, and that moving 
expeditiously to make this change effective immediately upon 
publication is in the best interest of the public.
    DHS has concluded that the good cause exceptions in 5 U.S.C. 
553(b)(B) and (d)(3) apply to this TFR. Delaying implementation of this 
rule until the conclusion of notice-and-comment procedures of section 
553(b) and the delayed effective date provided by section 553(d)(3) 
would be impracticable due to the need to prevent renewal applicants, 
otherwise eligible for the up to 180-day automatic extension, from 
experiencing the immediate harm caused by gaps in employment 
authorization and/or documentation, which would in turn cause imminent 
harm to their U.S. employers and their ability to maintain their 
workforce, while USCIS works to reduce adjudicatory processing times 
and otherwise address the Form I-765 backlogs through various measures.

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

    Executive Order (E.O.) 12866 and E.O. 13563 direct agencies to 
assess the costs and benefits of available regulatory alternatives and 
to the extent permitted by law, to proceed if the benefits justify the 
costs. They also direct agencies to select regulatory approaches that 
maximize net benefits (including potential economic, environmental, 
public health and safety effects, distributive impacts, and equity). In 
particular, E.O. 13563 emphasizes the importance of quantifying both 
costs and benefits, of reducing costs, of harmonizing rules, and of 
promoting flexibility. The Office of Information and Regulatory Affairs 
(OIRA), within the Office of Management and Budget (OMB), has 
designated this final rule a significant regulatory action that is 
economically significant under section 3(f)(1) of E.O. 12866. 
Accordingly, OIRA has reviewed this regulation.
1. Introduction
    As fully detailed in the preamble, this TFR temporarily amends 
existing DHS regulations to provide that the automatic extension period 
applicable to expiring employment authorization and/or Employment 
Authorization Documents (Forms I-766 or ``EADs'') for certain renewal 
applicants who have filed Form I-765, Application for Employment 
Authorization, will be increased from up to 180 days to up to 540 days 
for a period of 540 days (i.e., approximately 18 months). For those 
renewal applicants whose 180-day automatic extension of employment 
authorization and/or EADs (hereinafter may be referred to collectively 
as ``EADs'' for ease of reference) have expired by the date this rule 
goes into effect, this rule provides for an additional period of 
employment

[[Page 26636]]

authorization and EAD validity, beginning on the date the rule goes 
into effect and up to 540 days from the date their EADs expired as 
shown on the face of the card. The purpose of this TFR is to reduce the 
likelihood that certain eligible applicants who qualify for automatic 
extensions of their expiring EADs will experience gaps in employment 
authorization and/or EAD validity, and therefore allow earnings 
stability for individuals and continuity of business operations for 
their employers.
    DHS determines that the population impacted by this TFR consists of 
three components applicable to the pool of applicants who have renewal 
Form I-765 applications pending. The first component consists of the 
pool whose EADs and 180-day auto-extensions have lapsed, and renewal 
Form I-765 applications still have not been approved as of December 31, 
2021--we refer to this group as the ``current'' population segment. The 
second component consists of the pool for whom coverage by the current 
180-day auto-extension has prevented the lapse of their EADs to date 
but who would experience a lapse due to expiration of their 180-day 
auto-extensions in the 120-day period between the date of the analysis 
and the TFR taking effect.\162\ This second group is referred to as 
``near-term,'' in context. The third group consists of the ``future'' 
population that, without this rule, could experience a lapse in 
employment during the 18-month period in which the TFR is effective. 
Because we cannot forecast the future population with precision, we 
present a range. The baseline population comprising the current, near-
term, and future components could range from 301,463 to 423,863. After 
applying several adjustments described in the ``Background and 
Population'' section, we arrive at an adjusted population that could 
range from 266,841 to 375,545.
---------------------------------------------------------------------------

    \162\ The near-term captures the dates of January 1, 2022, to 
mid-April, 2022, when the TFR is expected to take effect.
---------------------------------------------------------------------------

    Our analysis suggests that virtually all eligible applicants with 
pending Form I-765 renewal applications who are otherwise eligible for 
the automatic extension would be covered by the TFR, though we cannot 
rule out the possibility that some automatically extended EADs might 
still lapse, as our analysis reveals that over recent months a 
miniscule share had lapsed for more than 540 days. We expect that the 
monetized estimates will be beneficial to individuals, and that they 
will also generate beneficial cost-savings to businesses.
    DHS has prepared quantified estimates of the impacts that could be 
generated by this TFR applicable to the adjusted population. This rule 
will prevent EAD holders from incurring a loss of earnings 
(``stabilized earnings''), as under this rule there will be no 
disruption to their earnings due to a lapsed EAD. Additionally, this 
rule will generate labor turnover cost savings to businesses that 
employ the EAD holders, as under this rule there will be no disruption 
to EAD holders' employment authorization. However, we are unable to 
ascertain how many individual businesses could be impacted. 
Additionally, to the extent this rule prevents affected EAD holders' 
jobs from going unfilled, there will be less impacts to tax transfers 
from businesses and employees to the Federal Government.
    Due to substantial variation in the inputs utilized to estimate the 
impacts, there is a very wide range in which they could fluctuate. 
These impacts are summarized in Table 7, where the monetized figures 
represent the forecast expected value (which is the mean of trial-based 
simulations) discounted at 7 percent rate of discount for a range based 
on simulations that account for variations in the components of the 
impacts. The figures represent the total cost over two years.

                       Table 7--Summary of Impacts
                            [FY 2020 Values]
------------------------------------------------------------------------
 
-----------------------------------------------------------------------------
Module A.
EAD Holder Earnings Preserved (``Stabilized Earnings''):
 Entities directly affected: Individual EAD holders.
 Population: 266,841 to 375,545 individuals with EAD renewals.
 Monetized present value estimate (7 percent): $3,098.0 million.
 Type: Stabilized labor income to affected EAD renewal
 applications; this labor income is a proxy for either prevented
 transfers from EAD holders to others in the workforce or cost savings
 to employers for preserved productivity, depending on if employers
 would have been able to easily find replacement labor for affected EAD
 holders without this rule.
 Summary: Individuals would benefit from being able to maintain
 their employment without disruption; DHS estimated these savings based
 on data from recently lapsed EADs and labor earnings, both of which
 vary within a range.
 Potential preserved employment taxes = $326.9 million (Present
 Value, 7 percent discount rate); actual amount will depend on how
 easily businesses would have been able to find replacement labor for
 affected EAD holders without this rule.
Module B.
Employer Labor Turnover Cost Savings:
     Entities directly affected: businesses that employ the EAD
     holders.
     Population: Unknown number of businesses; impacts based on
     265,987 to 374,343 individuals with EAD renewals.
     Monetized present value estimate (7 percent): $4,037.6
     million.
     Type: Cost-savings.
     Summary: There would be cost savings to employers in terms
     of continuity of business operations due to the worker not being
     separated; DHS estimated these savings based on information
     applicable to turnover costs relevant to the annual earnings, both
     of which vary within a range.
Module C.
Other Impacts Considered:
     Individuals impacted would likely benefit from cost-savings
     accruing to not having to incur the direct costs associated with
     searching for and obtaining a new job once their renewal EAD that
     lapsed is eventually approved.
     The estimates of stabilized earnings understate the true
     impact because they do not factor in the time it would take
     affected EAD holders to find employment beyond when the lapsed EAD
     is finally renewed.
     To the extent that individuals' earnings will be
     maintained, burdens to their support network would be prevented.
     DHS does not expect labor market impacts from this TFR, as
     the total maximum population that could be impacted is a very small
     share of the national labor force.
     Avoid opportunity costs to businesses for having to choose
     the next best alternative to employment of the affected EAD renewal
     applicant. We do not know if the replacement hire in a next best
     alternative scenario would have been a comparable substitute (i.e.,
     a productivity or profit charge to employers).
------------------------------------------------------------------------


[[Page 26637]]

    Some of the impacts of this rule will depend on whether businesses 
would have been able to find replacement labor for the positions the 
affected EAD renewal applicants would have lost if they had experienced 
a gap in employment without this rule. If businesses would have been 
able to find replacement labor from the pool of the unemployed, the 
only monetized cost savings of the rule to society is for preventing 
costs resulting from labor turnover. If businesses would not have been 
able to find replacement labor, the monetized cost savings of the rule 
would also include prevented lost productivity due to a lack of 
available labor. However, the impacts of this rule to the affected EAD 
renewal applicants do not depend on whether their employer can find 
replacement labor. This rule will prevent affected EAD renewal 
applicants from incurring a loss of earnings.
    DHS estimates that stabilized earnings to EAD renewal applicants 
ranges from $81.3 million to $6,388.6 million with a primary estimate 
of $1,713.5 million (annualized, 7 percent), depending on the wages the 
EAD renewal applicants earn, the number of EAD renewal applicants 
affected, and the duration of the gap in employment authorization that 
would occur without this rule. DHS uses estimates of the stabilized 
earnings as a measure of either 1) prevented transfers of these wages 
from the affected population to others in the labor market, or 2) a 
proxy for businesses' cost savings from prevented lost productivity, 
depending on whether businesses would have been able to find 
replacement labor for affected EAD renewal applicants without this 
rule.
    DHS does not know what the next best labor alternative would have 
been for businesses without this rule. Accordingly, DHS does not know 
the portion of the overall effects of this rule that are transfers or 
costs savings. To begin, DHS describes the two extreme scenarios, which 
provide the bounds for the range of effects.
    Scenario 1: If, in the absence of this rule, all businesses would 
have been able to easily find reasonable labor substitutes for the 
positions the EAD renewal applicants would have lost, businesses would 
have lost little or no productivity. Accordingly, this rule prevents 
$1,713.5 million (primary estimate annualized, 7 percent) from being 
transferred from affected EAD renewal applicants to workers currently 
in the labor force (whom are not presently employed full time) or 
induced back into the labor force and this rule would result in $0 cost 
savings to businesses for prevented productivity losses.
    Scenario 2: Conversely, if all businesses would have been unable to 
immediately find reasonable labor substitutes for the position the EAD 
holder filled, then businesses would have lost productivity. 
Accordingly, $1,713.5 million is the estimated monetized cost savings 
from this rule for prevented productivity losses and this rule will 
result in preventing $0 from being transferred from affected EAD 
renewal applicants to replacement labor. Because under this scenario 
businesses would not have been able to find replacement labor, the rule 
may also result in additional cost savings to employers for prevented 
profit losses; and further, may also prevent a reduction in tax 
transfer payments from businesses and employees to the government. DHS 
has not estimated all potential tax effects but notes that stabilized 
earnings of $1,713.5 million would have resulted in employment tax 
losses to the Federal Government (i.e., Medicare and Social Security) 
of $180.8 million (annualized, 7 percent).
    In both scenarios, whether without this rule employers would have 
been able to find replacement labor or not, DHS assumes that businesses 
would have incurred labor turnover costs for having to replace affected 
EAD renewal applicants. Accordingly, DHS estimates the rule will also 
result in additional labor turnover cost savings to businesses ranging 
from $232.2 million to $6,666.8 million, with a primary estimate of 
$2,233.1 million (annualized, 7 percent) depending on the wages the EAD 
renewal applicants earn, the number of EAD renewal applicants affected, 
and the replacement cost to employers.
    Table 8 below summarizes these two scenarios and the primary 
estimate of this rule (Tables 8A and 8B capture the impacts at 3 and 7 
percent rates of discount, respectively). Because DHS does not know the 
overall proportion of businesses that would have been able to easily 
find replacement labor in the absence of this rule, for DHS's primary 
estimate we assume that replacement labor would have been found for 
half of all EAD renewal applicants and not found for the other half 
(i.e., an average of the two extreme scenarios described above). 
However, as noted previously, December 2021 unemployment and job 
openings data indicate there are more jobs available than people 
looking for jobs.\163\ Accordingly, we believe the impacts of this rule 
will most likely skew towards Scenario 2, with the rule resulting in 
mostly cost savings for employers who would have been unable to fill 
the jobs of affected EAD renewal applicants without this rule.
---------------------------------------------------------------------------

    \163\ Bureau of Labor Statistics data show that as of December 
2021, there were 0.6 unemployed persons per job opening. U.S. 
Department of Labor, U.S. Bureau of Labor Statistics, Number of 
Unemployed Persons per Job Opening, Seasonally Adjusted (Jan. 2007 
through Jan. 2022), https://www.bls.gov/charts/job-openings-and-labor-turnover/unemp-per-job-opening.htm (last visited Mar. 14, 
2022).

                         Table 8A--Primary Estimate--Monetized Annualized Impacts at 3%
                                                   [Millions]
----------------------------------------------------------------------------------------------------------------
                                                                                                      Primary
                                                                    Scenario 1:   Scenario 2: No     estimate:
                                                                    Replacement     replacement     Replacement
              Category                       Description            labor found     labor found     labor found
                                                                      for ALL      for affected     for HALF of
                                                                   affected EAD     EAD holders    affected EAD
                                                                      holders                         holders
----------------------------------------------------------------------------------------------------------------
                                                    Transfers
----------------------------------------------------------------------------------------------------------------
Stabilized Earnings................  Prevented compensation             $1,693.0              $0          $846.5
                                      transfers from EAD renewal
                                      applicants to other
                                      workers.
Employment Taxes...................  Prevented reduction in                    0           178.6            89.3
                                      employment taxes paid to
                                      the Federal Government.
----------------------------------------------------------------------------------------------------------------

[[Page 26638]]

 
Cost Savings
----------------------------------------------------------------------------------------------------------------
Labor Turnover.....................  Prevented labor turnover            2,206.5         2,206.5         2,206.5
                                      costs to businesses.
Productivity.......................  Prevented lost productivity               0         1,693.0           846.5
                                      to businesses (stabilized
                                      earnings used as a proxy).
                                                                 -----------------------------------------------
    Total Cost Savings.............  ...........................         2,206.5         3,899.5         3,053.0
----------------------------------------------------------------------------------------------------------------


                         Table 8B--Primary Estimate--Monetized Annualized Impacts at 7%
                                                   [Millions]
----------------------------------------------------------------------------------------------------------------
                                                                                                      Primary
                                                                    Scenario 1:   Scenario 2: No     estimate:
                                                                    Replacement     replacement     Replacement
              Category                       Description            labor found     labor found     labor found
                                                                      for ALL      for affected     for HALF of
                                                                   affected EAD     EAD holders    affected EAD
                                                                      holders                         holders
----------------------------------------------------------------------------------------------------------------
Transfers
----------------------------------------------------------------------------------------------------------------
Stabilized Earnings................  Prevented compensation             $1,713.5              $0          $856.7
                                      transfers from EAD renewal
                                      applicants to other
                                      workers.
Employment Taxes...................  Prevented reduction in                    0           180.8            90.4
                                      employment taxes paid to
                                      the Federal Government.
----------------------------------------------------------------------------------------------------------------
Cost Savings
----------------------------------------------------------------------------------------------------------------
Labor Turnover.....................  Prevented labor turnover            2,233.1         2,233.1         2,233.1
                                      costs to businesses.
Productivity.......................  Prevented lost productivity               0         1,713.5           856.7
                                      to businesses (stabilized
                                      earnings used as a proxy).
                                                                 -----------------------------------------------
    Total Cost Savings.............  ...........................         2,233.1         3,946.6         3,089.9
----------------------------------------------------------------------------------------------------------------

    There are two important caveats to the monetized estimates. First, 
as the pending caseload evolves over the course of time that this TFR 
applies to, the pending count and therefore the total number of EADs 
and individuals associated with them will change. A resultant effect of 
the caseload changes is that as USCIS works through this backlog, the 
number of affected EAD renewal applicants and the durations for which 
EAD renewal applicants may have experienced a lapse in employment 
without this rule will likely vary from the durations modeled, which 
was those experienced in December 2021. As a result, DHS acknowledges 
the uncertainty in the above monetized impacts.
    Second, DHS recognizes that non-work time performed in the absence 
of employment authorization has a positive value, which is not 
accounted for in the above monetized estimates.\164\ For example, if 
someone performs childcare, housework, home improvement, or other 
productive or non-work activities that do not require employment 
authorization, that time still has value. In assessing the burden of 
regulations to unemployed populations, DHS routinely assumes the time 
of unemployed individuals has some value.\165\ The monetized estimates 
of the wages this rule preserves are measured relative to a baseline in 
which individuals lose EADs and the associated income as a result of 
the problem this rule seeks to address. The monetary value of the wages 
this rule preserves are savings to the individual, but DHS has 
considered whether net societal savings may be lower than the sum of 
the preserved wages to the individuals and whether a more accurate 
estimate of the net impact to society from losing employment 
authorization in the absence of this rule might take into account the 
value of individuals' non-work time, even though this population has 
lost their authorization to sell their time as labor. Due to the 
variety of values placed on non-work time, and the additional fact that 
this non-work time is involuntary, it is difficult to estimate the 
appropriate adjustment that DHS should make to preserved wages in order 
to account for the social value of non-work time. Accordingly, DHS 
recognizes that the net societal savings of this rule may be somewhat 
lower than those reported below, but they are a reasonable estimate of 
the impacts to avoiding the costs of lapsed EADs.
---------------------------------------------------------------------------

    \164\ Boardman et al., Cost-Benefit Analysis Concepts and 
Practice (2018), p.152
    \165\ For regulatory analysis purposes, DHS generally assumes 
the value of time for unemployed individuals is at least the value 
of the Federal minimum wage.

---------------------------------------------------------------------------

[[Page 26639]]

    Pursuant to OMB Circular A-4, DHS has prepared an A-4 Accounting 
Statement for this rule.

                                                          Table 9--OMB A-4 Accounting Statement
                                                                   [$ millions, 2020]
                                                             [Period of analysis: 2022-2023]
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
                    Category                             Primary estimate             Minimum         Maximum      Source citation (RIA, preamble, etc.)
                                                                                     estimate        estimate
--------------------------------------------------------------------------------------------------------------------------------------------------------
Benefits:
    Monetized Benefits..........................              7%             N/A             N/A             N/A  RIA.
                                                              3%             N/A             N/A             N/A
                                                 -------------------------------------------------------------------------------------------------------
    Annualized quantified, but un-monetized,                    N/A                          N/A             N/A  RIA.
     benefits.
                                                 -------------------------------------------------------------------------------------------------------
    Unquantified Benefits.......................  Without this rule, affected EAD renewal applicants who remain   RIA.
                                                  eligible for employment authorization would encounter delays
                                                  in EAD renewals and be unauthorized to work for periods of
                                                  time. This rule will ensure that these EAD renewal applicants
                                                  do not experience gaps in employment authorization as a result
                                                  of USCIS processing delays and can continue to make a living
                                                  to sustain their families. Accordingly, stabilized earnings
                                                  for these EAD renewal applicants may also prevent any monetary
                                                  or other support that would have been necessary from the
                                                  support network of affected EAD holders during such a period
                                                  of unemployment. It will also ensure other benefits of holding
                                                  an EAD or job will continue, such as valid identity documents,
                                                  or health insurance obtained through an employer.
                                                  Additionally, this rule will prevent adverse impacts on
                                                  businesses that would result from required terminations for
                                                  affected EAD renewal applicants.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Costs:
    Annualized monetized costs..................              7%       -$3,089.9         -$232.2      -$13,055.4  RIA.
                                                              3%        -3,053.0          -229.4       -13,131.0
                                                 -------------------------------------------------------------------------------------------------------
    Annualized quantified, but un-monetized,                    N/A                          N/A             N/A  RIA.
     costs.
                                                 -------------------------------------------------------------------------------------------------------
    Qualitative (unquantified) costs............  In cases where, in the absence of this rule, companies cannot   RIA.
                                                  find reasonable substitutes for the labor the affected EAD
                                                  renewal applicants have provided, affected businesses would
                                                  also save profits from the productivity that would have been
                                                  lost. In all cases, companies would avoid opportunity costs
                                                  from having to choose the next best alternative to employment
                                                  of the affected EAD renewal applicant.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Transfers:
    Annualized monetized transfers: ``on                      7%               0               0               0  RIA.
     budget''.                                                3%               0               0               0
                                                 -------------------------------------------------------------------------------------------------------
    From whom to whom?..........................             N/A             N/A
                                                 -------------------------------------------------------------------------------------------------------
    Annualized monetized transfers: stabilized                7%           856.7               0         6,388.6  RIA.
     earnings.                                                3%           846.5               0         6,312.4
                                                 -------------------------------------------------------------------------------------------------------
    From whom to whom?..........................  This rule will prevent compensation from transferring from      RIA.
                                                  affected EAD renewal applicants to other workers.
                                                 -------------------------------------------------------------------------------------------------------
    Annualized monetized transfers: taxes.......              7%            90.4               0           674.1  RIA.
                                                              3%            89.3               0           666.1
                                                 -------------------------------------------------------------------------------------------------------
    From whom to whom?..........................  This rule will prevent a reduction in employment taxes from     RIA.
                                                  companies and employees to the Federal Government
                                                  (quantified). It would also prevent the transfer of additional
                                                  Federal, State, and local income tax revenue (unquantified).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Category                                                                      Effects                             Source citation
                                                                                                                  (RIA, preamble, etc.)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Effects on State, local, and/or tribal            This rule will prevent a reduction in State and local tax       RIA.
 governments.                                     revenue (unquantified). It will also prevent potential
                                                  reliance on State or local government-funded support services
                                                  that may have been necessary with a gap in employment
                                                  authorization (unquantified).
                                                 -------------------------------------------------------------------------------------------------------
Effects on small businesses.....................  This rule does not directly regulate small entities but has     RIA, RFA.
                                                  indirect cost-saving to small entities that may employ
                                                  affected EAD renewal applicants. Such businesses will avoid
                                                  the costs for labor turnover and loss of productivity and
                                                  profits had they not been able to immediately fill the labor
                                                  performed by the affected EAD renewal applicant.
                                                 -------------------------------------------------------------------------------------------------------

[[Page 26640]]

 
Effects on wages................................  Preserve access to wages for EAD renewal applicants.            RIA.
                                                 -------------------------------------------------------------------------------------------------------
Effects on growth...............................  None.                                                           RIA.
--------------------------------------------------------------------------------------------------------------------------------------------------------

2. Background and Population
    Backlogs across USCIS-administered benefit requests, including 
employment authorization, have been increasing steadily since FY 2010, 
due to factors discussed in the preamble. Unforeseen obstacles driven 
by the COVID-19 pandemic that exacerbated existing financial problems 
within USCIS, staffing issues, and a surge in FY 2021 EAD filings, have 
aggravated the situation and caused a recent spike in USCIS processing 
times. This is especially concerning where the backlog involves 
employment authorization and documentation, which is critical to 
applicants' livelihoods and the financial well-being of their families, 
as well as U.S. employers' continuity of operations. USCIS understands 
the potential impact that delays in receiving final decisions have on 
applicants and tackling the backlog and reducing processing times is a 
priority for DHS.
    Currently, applicants in specific categories who are seeking to 
renew their expiring EADs are eligible for an automatic extension of 
that employment authorization and/or EAD for up to 180 days if they 
meet certain requirements. Because of the recent spike in processing 
times, however, DHS has determined that 180 days is no longer 
sufficient to prevent gaps in employment authorization and 
documentation for most eligible applicants. Therefore, DHS will provide 
an additional 360 days of employment authorization to the existing 180 
days (for a total of up to 540 days from the EAD expiration date), 
automatically provided to certain applicants seeking a renewal of their 
EADs under 8 CFR 274a.13(d)(1).
    In developing the populations examined for this analysis, it is 
useful to discuss four categories. First, there are applicants whose 
auto-extended EADs under the relevant categories have lapsed and whose 
renewal Forms I-765 have since been approved, providing them with a new 
grant of employment authorization and/or new documentation. Second, 
there are applicants whose auto-extended EADs have lapsed but renewal 
Forms I-765 have not yet been approved as of the date of the most 
recent data applicable to this analysis (December 31, 2021). Third, 
there are applicants whose EADs are still valid, including being within 
the 180-day auto-extension period, but whose auto-extension period will 
expire over the next 120 days, in the timespan leading up to the TFR 
taking effect (the near-term period captures the date of the analysis, 
which is January 1, 2022, through mid-April 2022). Fourth are the 
applicants whose EAD would lapse after the TFR becomes effective if it 
were not for the TFR. These population components will be considered 
``past,'' ``current,'' ``near-term,'' and ``future.''
    In this specific case, we think it is most appropriate to attribute 
the impacts to the population that is current in terms of being 
impacted, or that could be impacted in the near-term timespan leading 
up to the TFR, and the future, when the TFR is in effect. Hence, while 
we draw on data and information from the pool of applicants whose auto-
extended EADs lapsed but whose renewal Forms I-765 applications were 
subsequently approved, they are not part of the population affected by 
the rule.
    DHS analyzed pending renewal Form I-765 filing and processing 
information and determined that the current pool of relevant-category 
Form I-765 renewals that have expired and are pending in a lapse-state 
of the current analysis stands at 66,077. Furthermore, the near-term 
population (120-day period starting on January 1, 2022) is 96,786. For 
the future population, USCIS estimates with about 30,000 additional 
EADs per month are at risk of lapse without additional adjudication 
efforts. For the future, we also relied on certain projections about 
USCIS's efforts to reduce backlogs to make initial estimates. If 
current adjudication trends hold steady, about 14,500 EADs (10,500 per 
month for the C08, 3,000 per month C09, and 1,000 for the rest 
automatic extension-eligible categories) per month would lapse for the 
duration of the rule's effective timeframe. Over 18 months, that would 
be 261,000 new applicants who would lose at least one day of employment 
authorization without this rule. If, however, we assume a linear 
decrease in processing times such that by the end of the 18 months they 
were back to more reasonable levels, then about 138,600 individuals 
would lose employment authorization during the 18-month time frame (500 
per month C08, 300 per month C09, and 100 per month for all others at 
the end of the period) without this rule. Hence, as depicted in Table 
10, a range for the future population would be 138,600 to 261,000.

                                                       Table 10--TFR Future Population Projections
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                 Future low bound               Future upper bound
                                                                                         ---------------------------------------------------------------
                                                                            Additional     USCIS efforts
                                                                            EADs facing      to reduce                     USCIS efforts
                                                                            lapse each        lapses,                        to reduce
                      Approx. days                             Month       month without    outside of     Sum of lapsed      lapses,      Sum of lapsed
                                                                            additional      this rule:         EADs         outside of         EADs
                                                                            efforts to        linear                       this rule: no
                                                                           reduce lapses  improvement of                    improvement
                                                                                          800 each month                  over 18 months
                                                                                     (A)             (B)           (A-B)             (C)           (A-C)
--------------------------------------------------------------------------------------------------------------------------------------------------------
30......................................................               1          30,000          15,500          14,500          15,500          14,500
60......................................................               2          30,000          16,300          13,700          15,500          14,500

[[Page 26641]]

 
90......................................................               3          30,000          17,100          12,900          15,500          14,500
120.....................................................               4          30,000          17,900          12,100          15,500          14,500
150.....................................................               5          30,000          18,700          11,300          15,500          14,500
180.....................................................               6          30,000          19,500          10,500          15,500          14,500
210.....................................................               7          30,000          20,300           9,700          15,500          14,500
240.....................................................               8          30,000          21,100           8,900          15,500          14,500
270.....................................................               9          30,000          21,900           8,100          15,500          14,500
300.....................................................              10          30,000          22,700           7,300          15,500          14,500
330.....................................................              11          30,000          23,500           6,500          15,500          14,500
360.....................................................              12          30,000          24,300           5,700          15,500          14,500
390.....................................................              13          30,000          25,100           4,900          15,500          14,500
420.....................................................              14          30,000          25,900           4,100          15,500          14,500
450.....................................................              15          30,000          26,700           3,300          15,500          14,500
480.....................................................              16          30,000          27,500           2,500          15,500          14,500
510.....................................................              17          30,000          28,300           1,700          15,500          14,500
540.....................................................              18          30,000          29,100             900          15,500          14,500
                                                         -----------------------------------------------------------------------------------------------
    Cumulative Total....................................  ..............  ..............         138,600  ..............         261,000
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: A linear reduction in the monthly shortfall of 14,500, over 18 months is 805.6, rounded to 800 in these projections for simplicity.

    We stress that these estimates were not made via a formal modelling 
or time series analysis approach, as variables could affect the 
population over time via changes in volumes, processing times, and 
other factors that are not possible to predict. As such, DHS 
acknowledges the uncertainties in these estimates, but they represent 
the potential population for the impact estimates using the best 
available information at the time of this analysis.
    We thus define the broad population baseline (denoted generally as 
``PB'') as the sum of the three components, which, given the range for 
the future, would lie between 301,463 and 423,863.\166\ We next proceed 
to make a few adjustments to PB. First, for the current population, we 
parsed out late filers (who are not eligible for the 180-day automatic 
extension) and some applications that may have lapsed for other reasons 
not exclusive to the context of the TFR to obtain a narrower population 
of 65,000.\167\
---------------------------------------------------------------------------

    \166\ 66,077 ``current'' + 96,786 ``near-term'' + 138,600 
``future'' = 301,463 total (low end of the range) 66,077 ``current'' 
+ 96,786 ``near-term'' + 261,000 ``future'' = 423,863 total (high 
end of the range).
    \167\ Data provided by DHS, USCIS Office of Performance and 
Quality (OPQ); Claims 3 and SAS PME; obtained on January 17, 2022.
---------------------------------------------------------------------------

    An assumption that is implicit in the populations developed below 
is that every individual with a lapsed EAD would be unauthorized to 
work. In reality, some of the individuals may be authorized to work--or 
become authorized to work--incident to status and merely relying upon 
the EAD to evidence that employment authorization. Others may be 
relying upon the EAD as a government-issued identity document and not 
using it to obtain employment. In either instance, USCIS does not know, 
and is unable to reasonably estimate, how many individuals or what 
percentages of the populations may be separately employment authorized 
or otherwise not relying on the EAD to document their employment 
authorization. It is possible, therefore, that the lower bound estimate 
of population is overstated.
    All the impacts that we estimate quantitatively rely on labor 
earnings by the relevant individuals with EADs. The assessments of 
possible impacts rely on the assumption that everyone who was approved 
for an EAD under the relevant categories entered the labor force. DHS 
believes this assumption is justifiable because applicants would 
generally not have expended the direct filing (for the pertinent EAD 
categories in which there is a filing fee) and time-related opportunity 
costs associated with applying for an EAD if they did not expect to 
recoup an economic benefit. Realistically, however, individuals might 
not be employed for any number of other reasons not specifically 
relevant to this action. The national unemployment rate (``UR'') as of 
November 2021, is 4.2 percent.\168\ There is constant and considerable 
job turnover in the labor market even when the unemployment rate is 
low. Individuals could be unemployed due to this normal turnover or 
from any number of case-specific factors and conditions. As such, we 
believe it is reasonable to scale the population to account for 
unemployment. In addition, not all Form I-765 renewal applications are 
approved. DHS calculated the applicable Form I-765 renewal approval 
rate (``RA'') for FY 2020 through 2021 filings, which was 92.7 
percent.\169\ To obtain the adjusted population (``PA'') we use the 
formula: PB x (1-UR) x (RA), which yields a population that could range 
from 266,841 to 375,545. These population data and associated shares of 
the totals are presented in Table 11.
---------------------------------------------------------------------------

    \168\ Source: BLS, The Employment Situation--November 2021, 
https://www.bls.gov/news.release/archives/empsit_12032021.pdf (last 
visited Dec. 10, 2021).
    \169\ Calculation was made from EAD filing data, Form I-765, 
Application for Employment Authorization, Eligibility Category and 
Filing Type FY 2003 through 2021, https://www.uscis.gov/sites/default/files/document/data/I-765_Application_for_Employment_FY03-21.pdf (last updated Oct. 2021). Due to the increase in backlogs, 
the approval rate was calculated as the number of approvals divided 
by the sum of approvals and denials, rather than the receipts basis.

[[Page 26642]]



                                       Table 11--Estimated TFR Population
----------------------------------------------------------------------------------------------------------------
               Module A. baseline                            Low bound                      Upper bound
----------------------------------------------------------------------------------------------------------------
                                                                       Share                           Share
                    Component                         Number         (percent)        Number         (percent)
----------------------------------------------------------------------------------------------------------------
i. Current......................................          66,077            21.9          66,077            15.6
ii. Near-term...................................          96,786            32.1          96,786            22.8
iii. Future.....................................         138,600            46.0         261,000            61.6
                                                 ---------------------------------------------------------------
    Total.......................................         301,863           100.0         423,863           100.0
----------------------------------------------------------------------------------------------------------------
               Module B. adjusted                            Low bound
                                                            Upper bound
----------------------------------------------------------------------------------------------------------------
                    Component                         Number           Share          Number           Share
                                                                       (percent)                       (percent)
----------------------------------------------------------------------------------------------------------------
i. Current......................................          57,795            21.7          57,795            15.4
ii. Near term...................................          85,956            32.2          85,956            22.9
iii. Future.....................................         123,091            46.1         231,794            61.7
                                                 ---------------------------------------------------------------
    Total.......................................         266,841           100.0         375,545           100.0
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis of EAD renewal filing data, provided by DHS, USCIS Office of Performance and Quality
  (OPQ); data provided 1-1-2022. Estimate for the future population provided by OPQ on 2-3-2022.

    The adjusted population captures the population that will incur 
impacts applicable to both labor earnings for individuals and labor 
turnover costs to employers. While some information on employment is 
available through E-Verify (discussed below) we cannot determine how 
many individual employers would be impacted. The high population bound 
would represent the maximum number of businesses impacted under a 
scenario in which each business hired one and only one individual from 
the population.
    There is an important caveat to the adjusted populations upon which 
DHS will base our estimated impacts. Over time, the backlog and pending 
pool will evolve according to multiple factors. While we have attempted 
to account for future changes in the backlog based on the information 
we have available to us at this time, it is possible that other factors 
may change that we have been unable to capture such as future surges in 
renewal applications. Therefore, DHS acknowledges the uncertainty in 
the above estimated ranges of affected populations and that the number 
of individuals impacted over the course of time may differ from our 
adjusted population.
3. Impact Analysis
    This section is organized into modules as follows: In Module A, DHS 
develops earnings levels for the EAD renewal filers.
    Module B focuses on labor earnings impacts and is divided into two 
sections. First, the analytical procedures and results applicable to 
durations for auto-extended EADs that lapsed but where renewal Form I-
765 applications were since approved are detailed; as described in the 
preceding section, this portion is not part of the adjusted population 
affected by this rule, but metrics and data derived from it are vital 
to the subsequent estimation procedures. Second, the requisite impact 
simulations for the impacted populations are calibrated, run, and the 
results presented.
    Module C addresses labor turnover cost savings from the rule. 
Module D collates the monetized impacts and reports the discounted 
terms, since the TFR will stretch past one year. Module E discusses the 
impacts from an economic and business perspective, and Module F 
concludes with consideration of other possible effects.
    Since we are dealing with multiple variables, we use abbreviations 
where possible, as in the above discussion of the population.
Module A. Earnings of EAD Renewal Applicants
    We expect two broad types of impacts from this TFR that are 
estimated and quantified. First, there will be impacts to eligible 
individual EAD holders in terms of their ability to maintain labor 
earnings. Second, impacts will accrue to businesses that employ the EAD 
holders in maintaining continuity of employment and thus avoiding labor 
turnover costs. A central component of both impacts is the earnings of 
the EAD renewal filers, which figure prominently into the monetized 
estimates. An important factor in the estimation procedure requires 
establishing a range bounded by a lower and upper level.
    The Federal minimum wage is $7.25 per hour; however, in this 
rulemaking, we rely on the national ``effective minimum wage'' of 
$11.80 for the forthcoming estimation procedures, which considers the 
diverse lower wage bounds practiced across U.S. States.\170\
---------------------------------------------------------------------------

    \170\ See Ernie Tedeschi, Americans Are Seeing Highest Minimum 
Wage in History (Without Federal Help), N. Y. Times (Apr. 24, 2019), 
https://www.nytimes.com/2019/04/24/upshot/why-america-may-already-have-its-highest-minimum-wage.html. We note that with the wage level 
applies to 2019, but we do not make an inflationary adjustment 
because not all minimum wage levels are set to adjust with 
inflation.
---------------------------------------------------------------------------

    Because the individuals renewing EADs would be relatively new 
entrants to the labor force, we would not expect most of them to earn 
high wages. However, it is likely that some earn wages above the 
minimum. Because the EADs impacted do not include or require, at the 
initial or renewal stage, any data regarding wages, DHS has no 
information from the associated forms concerning earnings, occupations, 
industries, positions, or businesses that may employ such workers. DHS 
can add some robustness to the estimates by incorporating actual data 
concerning the employment of the EAD holders to draw inference on their 
earnings.
    DHS obtained FY 2020 E-Verify (``EV'') records for the EAD 
categories potentially impacted, which yielded 4.71 million 
records.\171\ These records neither distinguish between an EV case for 
an initial EAD, a renewal EAD, or the EV case result, but they do 
provide information that we can draw from regarding employment. The 
data record the North American Industry Classification System (NAICS) 
code,

[[Page 26643]]

which is utilized by Federal statistical agencies in classifying 
business establishments. The EV data does not provide information on 
job type or occupation, but it does substantiate the NAICS code 
pursuant to the 3-digit ``subsector'' level (with a few exceptions).
---------------------------------------------------------------------------

    \171\ Data were provided by DHS, USCIS Immigration Records and 
Identity Services Directorate (IRIS), Verification Division; 
obtained on December 23, 2021.
---------------------------------------------------------------------------

    Analysis of the EV records shows that they disproportionately 
accrued to a small subset of subsectors. Of one hundred represented 
subsectors, only four exhibited shares higher than 10 percent--
Professional, Scientific, & Technical Services (22.7 percent), Other 
Information Services (13.3 percent), Administrative and Support 
Services (13.0 percent), and internet Service Providers, Web Search 
Portals, and Data Processing Services (11.6 percent). Moreover, the 
upper quartile is reached with just eleven subsectors. The average 
individual share across these eleven subsectors was 6.9 percent, while 
for the entire remainder the individual average was 0.3 percent. Given 
this concentration, we will center the analysis on these eleven 
subsectors.
    We rescaled the shares of the subsectors according to the total 
number of records for these eleven subsectors (3.55 million) and 
obtained the average hourly wage for all occupations within the 
relevant NAICS codes from BLS. We then calculated a weighting factor 
input, which is the product of the wage and the rescaled share, and 
then summed across all rows to obtain a weighted average of 
$36.78.\172\ We applied this figure as the upper earnings bound, noting 
that it is more than one-third (35.9 percent) higher than the current 
national average wage weighted across all occupations, of $27.07.\173\
---------------------------------------------------------------------------

    \172\ Additional details are available in the Appendix, which is 
located in the Docket for this rulemaking on www.regulations.gov.
    \173\ The earnings information for the NAICS codes are found in 
the ``May 2020 National Industry-Specific Occupational Employment 
and Wage Estimates'' in the BLS Occupational Employment and Wage 
Statistics (OEWS) portal, https://www.bls.gov/oes/2020/may/oessrci.htm (last updated Mar. 31, 2021). The national average wage 
is also found in the above OEWS suite, https://www.bls.gov/oes/2020/may/oes_nat.htm (last updated Mar. 31, 2021).
---------------------------------------------------------------------------

Module B. Impacts That Could Accrue to Labor Earnings
1. Duration Analysis for Previously Lapsed EAD Renewals
    To estimate the impacts that could accrue to labor earnings, DHS 
extracted a filing sample size and adjudication records on 31,676 auto-
extended EADs for the relevant categories which had lapsed and where 
the renewal Form I-765 applications were subsequently approved from 
June-December 31, 2021. This time frame was chosen to draw recent data 
in context of the problem set being addressed. For each record, we 
calculated the duration in calendar days (``DL'') applicable to the end 
of the initial EAD validity date and the eventual approval of the 
renewal Form I-765 application in cases where the auto-extended EAD had 
lapsed. The analysis of the lapse-data shows that the durations are not 
normally distributed and in fact display a strong positive skew; this 
is because the majority of the pending EADs are resolved within the 
first 50 days after lapsing. Less than 10 percent of the pending EADs 
take more than 115 days to be approved. Please see Table 12 below for a 
breakout of the number of days the EADs have lapsed.
    We utilized the Oracle Crystal Ball[supreg] Modelling and 
Simulation Software (``OCB'') to analyze the data. OCB indicates that 
the Gamma density function provides the best fit.\174\ The Gamma 
distribution is a member of the exponential distributions and is 
applicable in situations where the data displays considerable variance, 
is restricted to positive values, and is skewed to the right 
(positively skewed). It is frequently utilized in analyses to predict 
durations and wait times until future events occur. Overall, the range 
of the lapse-durations is very high. However, values of more than 360 
days have a very small probability, 0.32 percent, of being realized.
---------------------------------------------------------------------------

    \174\ OCB ranks density fit according to internal routines that 
evaluate the appropriateness of several tests according to the 
sample size/population. In this case, the Gamma density function 
fits the data best based on all continuous distributions subject to 
a scoring method applicable to the test statistic of the Anderson-
Darling (A-D) test, which in this case is 40.84 (it is not however, 
based on a test of significance. For sample sizes and populations 
that are large, exact tests of significance based on p-values are 
generally unreliable in terms of providing evidence in support of 
the null hypothesis for any distribution).
---------------------------------------------------------------------------

    To illustrate the feature of the lapse-durations, we provide the 
associated probability plot in the Appendix (Figure A.2). The value 
bars are overlayed with the gamma curve, which visually displays a very 
good fit. In addition, we can see that as the values get to about 180 
or so, they asymptotically converge to zero. We have also marked the 
plot with the mode (the most frequently observed value, of 7), the 
median, (40.0), and the mean (52.5). The larger mean compared to the 
median confirms the positive skew, as it is generally indicative that 
unusually high individual values tend to pull the mean above the 
median, the latter of which is not significantly impacted by the skew. 
Figure A.2 is trimmed to 540 days, and shows a marker for 360 days, as 
the latter is the maximum lapse duration this rule can prevent as it 
provides a temporary increase of 360 days beyond the existing 180-day 
auto-extension period (for a total automatic extension period of 540 
days). The value of 360 is at the 99.8th percentile. At this level, 
there is still almost a zero probability of a lapse in an EAD occurring 
with this rule's temporary increase to the auto-extension period. The 
percentiles presented in Table 12 represent the fitted values under the 
Gamma density curve for DL up to 360 days.

Table 12--Percentiles for the Number of Calendar Days Between When Auto-
Extended EADs Expired and Renewal Forms I-765 Were Subsequently Approved
                            in Recent Months
                  [``Lapse Duration'' in calendar days]
------------------------------------------------------------------------
                                                                Gamma
                                                            distribution
                        Percentile                            (calendar
                                                                days)
------------------------------------------------------------------------
0.........................................................             1
10........................................................             7
20........................................................            13
30........................................................            19
40........................................................            28
50........................................................            40
60........................................................            53
70........................................................            69
80........................................................            88
90........................................................           114
100.......................................................          358+
------------------------------------------------------------------------
Source: USCIS analysis of EAD data; provided by DHS, USCIS, OPQ, Claims
  3 database; obtained on 12-17-2021. Analysis conducted with OCB and
  SAS VIYA PME.

    As the percentiles increase, the durations increase at a consistent 
rate; however, the upper percentile exhibits a significant jump. This 
data therefore corresponds to the probability graph in showing that 
once the 90th percentile is reached, the lapse-durations begin to 
diverge from the distribution to that point and gravitate to almost 
zero.
2. Simulation and Impact Estimation
    The adjusted population (``PA'') of 266,841 to 375,545 individuals 
could incur impacts that would result in stabilized earnings, as there 
would be no disruption to their earnings under the TFR. For the 
estimation procedure we account for worker benefits by calculating a 
benefits-to-wage multiplier using the most recent BLS information 
detailing the average employer costs for employee compensation for all 
civilian workers in major occupational groups and industries. DHS 
relies on a benefits-to-wage multiplier (``BM'') of 1.45 and, therefore 
estimates the full opportunity cost per applicant, including employee

[[Page 26644]]

wages and salaries and the full cost of benefits such as paid leave, 
insurance, retirement, and other benefits.\175\ The total rate of 
compensation for the effective minimum hourly wage is $17.11 ($11.80 x 
benefits burden of 1.45), which is 62.8 percent higher than the basic 
Federal minimum wage of $7.25. Burdened for benefits, the weighted 
average hourly wage (derived from the EV analysis) is $53.33 ($36.78 x 
benefits burden of 1.45). An hourly benefits-burdened earnings bound of 
$17.11-$53.33 provides a range that we think is realistic to estimate 
the impacts for this TFR.
---------------------------------------------------------------------------

    \175\ The benefits-to-wage multiplier is applicable to civilian 
workers and is calculated as follows: ($38.91 Total Employee 
Compensation per hour)/($26.85 Wages and Salaries per hour) = 
1.44916 = 1.45 (rounded). See BLS, Economic News Release, Employer 
Cost for Employee Compensation (June 2021), Table 1, Employer Costs 
for Employee Compensation by ownership (dated September 16, 2021, 
reissued Dec. 17, 2021), https://www.bls.gov/news.release/archives/ecec_09162021.htm (last visited Feb. 23, 2022).
---------------------------------------------------------------------------

    DHS is interested in estimating the mean and a range for the 
impacts that is likely to be realized. Since the population, earnings, 
and lapse-durations all vary within a range, and noting especially high 
variance of the latter, we employ via OCB a simulation approach. For 
the earnings and population, we rely on the uniform distribution. This 
is a discreet distribution which essentially means that any value in 
the range has the same probability as being selected as any other 
value. This structure is chosen because we have no evidence or data to 
suggest that the earnings or population would tend to cluster at either 
the low or high end of the range. The minimum and maximum level are 
pursuant to the relative figures in preceding paragraph.
    The Gamma distribution is generally continuous in the upper tail. 
However, because the software is utilized extensively for scenario-
specific and risk management simulations, we can calibrate the 
forthcoming simulation to exclude choosing values above a certain 
level, which we tune to the value of 360, as that is the maximum day-
lapse duration this rule can prevent.
    In addition, we introduce a time scalar (``TS'') to account for a 
typical 8-hour workday and 5-day workweek; the product of 8 x (\5/7\) 
is 5.714.\176\ Denoting hourly earnings (``EH''), under the ``define 
forecast'' toolkit we entered the program: PA x EH x BM x Ts x DL and 
tuned the Gamma distribution for the produced parameters.\177\ The 
tuning features for the system are listed in Table 13, which includes 
the three-parameters OCB produced for the distribution:
---------------------------------------------------------------------------

    \176\ DHS assumes that all EAD renewal applicants are employed 
full-time; DHS recognizes that some employees may be employed only 
part-time. DHS recognizes this may result in an overestimate of the 
below stabilized earnings estimates.
    \177\ PA x EH x BM x Ts x DL = 266,841 to 375,545 Adjusted 
Population x $11.80 to $36.78 Hourly Earnings x 1.45 Benefits 
Multiplier x 5.714 Time Scalar x Gamma Distributed Lapse Duration in 
Calendar Days.

                            Table 13--Calibration for Stabilized Earnings Estimation
----------------------------------------------------------------------------------------------------------------
                                                   Minimum    Maximum                 Distribution
----------------------------------------------------------------------------------------------------------------
Population (P)..................................    266,841    375,545  Uniform.
Fully-loaded Earnings (E x B)...................     $17.33     $53.33  Uniform.
Durations (D)...................................          1        360  Gamma:
                                                                        Location: .0017.
                                                                        Scale: 44.57.
                                                                        Shape: 1.16.
----------------------------------------------------------------------------------------------------------------
Source: USCIS Analysis.

    OCB repeatedly calculates results using a different set of random 
values from the range of values and probability distributions described 
in Table 13 above to build a model of possible results. We ran 100,000 
randomized seed trials, which is sufficient to generate a 95 percent 
level of precision in the results. Based on the simulation, the 
expected value (which is the mean of probabilistic-based forecast 
values) for stabilized earnings is $3,354.3 million.\178\ We also 
generated a 95 percent certainty range, which reports $159.2 million to 
$12,506.4 million, noting that the extreme range is due to the high 
variation in the inputs.\179\ A sensitivity analysis that scores the 
inputs in terms of how much variation in each contributes to 
fluctuation in the forecasted values reveals that the vast majority, 
90.7 percent, of the variation was driven by variation in the lapse 
duration-days.
---------------------------------------------------------------------------

    \178\ The certainty level is based on the entire range of 
forecast values, so the 95 percent certainty range is the range 
between which 95 percent of forecasted values are expected to fall, 
regardless of proximity to the mean. Roughly speaking, the 95 
percent certainty bound would generally capture the distribution-
specific forecast values lying between the 2.5th and 97.5th 
percentiles.
    \179\ In one sense, the stabilized earnings impacts are 
overstated a bit. For some portion of the near-term population, the 
effective date of the TFR would interrupt their EAD lapse such that 
the lapse would not be as long as it otherwise would. It would be 
extremely difficult to attempt to estimate this reality 
quantitatively, as, over the course of the near-term, EADs would 
lapse at different points in time and some would be approved prior 
to the TFR while others would have their lapse interrupted by it.
---------------------------------------------------------------------------

    If, without this rule, businesses would not have been able to find 
replacement labor for the position the affected EAD renewal applicant 
filled, then the unperformed labor would have resulted in a reduction 
in taxes from employers and employees to governments. Accordingly, the 
stabilized earnings derived from this rule, and estimated above, will 
prevent such a reduction in taxes. It is challenging to quantify 
Federal and State income tax impacts of employment in the labor market 
scenario because individual and household tax situations vary widely as 
do the various State income tax rates.\180\ But DHS is able to estimate 
the potential contributory effects on employment taxes, namely Medicare 
and Social Security, which have a combined tax rate of 7.65 percent 
(6.2 percent and 1.45 percent, respectively).\181\ With both the 
employee and employer paying their respective portion of Medicare and 
Social Security taxes, the total estimated level of tax transfer 
payments from employees and employers to Medicare and Social Security 
is 15.3 percent.
---------------------------------------------------------------------------

    \180\ https://www.cnbc.com/2021/08/18/61percent-of-americans-paid-no-federal-income-taxes-in-2020-tax-policy-center-says.html 
(last updated Aug. 20, 2021) and for varying State income tax rates 
see, https://www.thebalance.com/state-income-tax-rates-3193320 (last 
updated Jan. 3, 2022).
    \181\ The various employment taxes are discussed in more detail, 
see https://www.irs.gov/businesses/small-businesses-self-employed/understanding-employment-taxes (last updated Mar. 14, 2022). See IRS 
Publication 15, Circular E, Employer's Tax Guide for specific 
information on employment tax rates (Dec. 16, 2021). https://www.irs.gov/pub/irs-pdf/p15.pdf. Relevant calculation: (6.2 percent 
Social Security + 1.45 percent Medicare) x 2 employee and employer 
losses = 15.3 percent total estimated public tax impact.
---------------------------------------------------------------------------

    We estimate the tax impacts on the unburdened earnings basis. 
Denoting

[[Page 26645]]

the tax impact ``TI'' and stabilized earnings ``ES,'' for the three 
values reported the tax impact is derived as: (TI x ES)/BM.\182\ If, 
without this rule, all employers would have been unable to find 
replacement labor for the position the EAD renewal applicant filled, 
this rule will prevent a reduction in employment taxes from employers 
and employees to the Federal Government of $353.9 million, but could 
range from $16.8 million to $1,319.5 million. The actual value of tax 
impacts will depend on the number of affected EAD holders that 
businesses would have been able to easily find reasonable labor 
substitutes for in the absence of this rule.
---------------------------------------------------------------------------

    \182\ We divide by the 1.45 benefits multiplier to account for 
the fact that employment taxes are calculated based upon wages paid, 
not including fringe benefits.
---------------------------------------------------------------------------

Module C. Labor Turnover Cost Impacts
    This TFR is expected to generate a labor turnover cost savings to 
employers of affected EAD holders. DHS bases the assessment of these 
costs on the assumption that every EAD applicable to the adjusted 
population that would have lapsed without this rule would have 
generated an involuntary separation from an employer, and that the 
separation is due to no other factors. While DHS cannot estimate how 
many actual employers would be impacted because DHS does not have 
employer information for all affected EAD holders, DHS can make an 
informed estimate of the aggregate scope of the impact, embodied in a 
cost-savings to the employers.\183\
---------------------------------------------------------------------------

    \183\ We have no basis to say how many employers will be 
impacted, because any individual employer could have hired more than 
one of the EAD holders in the population. Therefore, if each 
individual was hired by one and only one business, the number of 
employers impacted would converge to the maximum population.
---------------------------------------------------------------------------

    Employment separations can generate substantial labor turnover 
costs to employers that can be divided into several components. First 
are the direct or ``hard'' costs that involve separation and 
replacement costs. The separation costs include exit interviews, 
severance pay, and costs of temporarily covering the employee's duties 
and functions with other employees, which may require overtime or 
temporary staffing. The replacement costs typically include expenses of 
advertising positions, search and agency fees, screening applicants, 
interviews, background verification, employment testing, hiring 
bonuses, and possible travel and relocation costs. Once hired, 
employers face additional training, orientation, and assessment costs.
    Second, direct costs involve loss of productivity and possibly 
profitability due to operational and production disruptions, which can 
include errors from other employees that may temporally fill the 
position. Some analysts have identified a third cost segment, which is 
a type of indirect cost, which encompasses loss of institutional 
knowledge, networking, and impacts to work-culture, morale, and 
interpersonal relationships. This last type of cost is almost 
impossible to measure quantitatively.\184\
---------------------------------------------------------------------------

    \184\ For additional descriptions of the components of labor 
turnover costs, see ``Employee retention: The Real Cost of Losing an 
Employee,'' by Gabrielle Smith, PeopleKeep (September 17, 2021), 
https://www.peoplekeep.com/blog/employee-retention-the-real-cost-of-losing-an-employee.
---------------------------------------------------------------------------

    There are numerous studies and reports concerning labor turnover 
costs (``LTC'') available from Human Resource entities which are cited 
across correspondent literature. Some focus on specific occupations, 
industries, salary levels, and often measure LTC in slightly different 
ways. LTC is generally reported as a share (percentage, ``LC'') of the 
annual earnings (``EA'') or an actual cost per employee for which a 
percentage can be calculated. Many reports cite a 2012 report published 
by the Center for American Progress (CAP) that surveyed more than 30 
studies that considered both direct (e.g., separation and replacement) 
and indirect (e.g., loss of institutional knowledge) costs. In Module B 
above, DHS captures preserved productivity savings had employers not 
been able to immediately find replacement labor for EAD renewal 
applicants without this rule. DHS requests comment on how, or if, that 
measure of productivity may overlap with the types of productivity 
covered in the CAP report captured here, such as from the 
substitutability of replacement labor.
    The CAP and other reports that we reviewed confirm three central 
aspects of LTC: (i) That they vary substantially across industries and 
jobs; (ii) that they tend to grow (in absolute and percentage terms) 
according to skill level and earnings; and (iii) that they are higher 
for salaried workers compared to hourly-wage earners.\185\ The 
reporting notes that specialized technical jobs and highly paid jobs in 
line with senior or executive levels, which involve high levels of 
education, credentials, and stringent hiring criteria, can generate 
disproportionately high LTC that can reach more than 100 percent of the 
salary--compared to jobs with low educational and technical 
requirements.\186\ However, the CAP survey found that costs tend to 
range within a bound of 10 percent to around 40 percent of the salary. 
For example, CAP found despite wide variation and range, for workers 
earning $50,000 or less, and for workers earning $75,000 or less, 
which, at the time of the study in 2012 corresponded to, the 75th and 
90th percentiles of typical earnings, LTC ranged typically from 10 to 
30 percent of the salary, clustering at about 21 percent. More recent 
reports indicate that the typical cost is about one-third of the 
salary.\187\
---------------------------------------------------------------------------

    \185\ See ``There Are Significant Business Costs to Replacing 
Employees,'' By Heather Boushey and Sarah Jane Glynn (Nov. 16, 
2012), Center for American Progress, https://www.americanprogress.org/issues/economy/reports/2012/11/16/44464/there-are-significant-business-costs-to-replacing-employees/.
    \186\ See ``This Fixable Problem Costs U.S. Businesses $1 
Trillion,'' by Shane Mcfeely and Ben Wigert, Workplace (March 13, 
2019): https://www.gallup.com/workplace/247391/fixable-problem-costs-businesses-trillion.aspx. See also ``Dangers of Turnover: 
Battling Hidden Costs,'' by Kate Heinz (last updated: March 25, 
2020), Built in, https://builtin.com/recruiting/cost-of-turnover.
    \187\ See ``The Real Cost of Employee Turnover in 2021,'' Terra 
Staffing Group (Nov. 4, 2020), https://www.terrastaffinggroup.com/resources/blog/cost-of-employee-turnover. See also ``112 Employee 
Turnover Statistics: 2021 Causes, Cost & Prevention Data,'' by Louie 
Andre, Finances Online, https://financesonline.com/employee-turnover-statistics/#cost.
---------------------------------------------------------------------------

    DHS could nest the information above into an estimation procedure, 
but it would be beneficial to examine granular data to hone the 
estimates for two reasons. First, it would be valuable to quantify the 
correlation between annual earnings and labor turnover costs and 
incorporate it in the forecast procedure. Second, it is desirable to 
obtain a distribution for the data--an average and median could be 
gathered from the referenced reporting, but there would be a gap in 
terms of other metrics needed to calibrate a certain distribution. DHS 
examined a 2020 report by the Washington Center for Equitable Growth, 
which updated the earlier CAP study results to provide information on 
about thirty studies on LTC.\188\ We selected data points that captured 
both the annual earnings salary (which the study benchmarked to 2019 
levels) and turnover costs. We then culled the data applicable to 
salary levels more than the maximum in our earnings bound. At 2,080 
annual work hours, the unburdened weighted average EA is 
$76,502 (the higher earnings levels also corresponded generally to very 
high LTC that are outside what we think is

[[Page 26646]]

the reasonable range).\189\ We note that we are assuming that the 
individuals are employed full time, as 2,080 annual work hours 
corresponds to a five-day work week and 8-hour work-day. We welcome 
public input on this assumption. Twenty-seven resulting data points 
were employed for the analysis.\190\ While this may be relatively few 
observations, OCB nevertheless was able to fit a Beta density function 
to the data, and we are confident in relying on the results. Foremost, 
the mean of 24.3 percent and the median of 19.8 percent are very 
similar to the information reported in the studies referenced above and 
fall within a substantial range, from 4.1 percent to 68.7 percent. 
Second, on qualitative grounds the Beta distribution is well-suited as 
a setup. The Beta distribution is also a family member of the 
exponential distributions and closely resembles the gamma function. It 
is utilized in situations where there is substantial variance and is 
discrete at the lower end minimum, further restricted to positive 
values. First, negative values can be ruled out in context--there 
cannot be zero cost to an employee separation--and thus a lower tail 
cutoff to bound to the cost percentage is appropriate. Second, we can 
reasonably conjecture that the costs would tend to cluster near the 
lower tail of the distribution (as outlined in the CAP report), which 
is amenable to the positive skew of the distribution, reinforced by the 
data resultant mean being larger than the median.\191\ Additionally, 
the scatterplot (see Appendix, Table A.3) with the fitted least squares 
line clearly reveals that LC is an increasing function of the earnings, 
with a correlation coefficient of 0.661. The Ordinary Least Squares 
regression indicates that a $1,000 increase in annual earnings leads to 
a .63 percentage point increase in labor turnover costs (LC).
---------------------------------------------------------------------------

    \188\ See ``Improving U.S. Labor Standards and the Quality of 
Jobs to Reduce the Costs of Employee Turnover to U.S. Companies,'' 
By Kate Bahn and Carmen Sanchez Cumming (December 2020), Washington 
Center for Equitable Growth, at: https://equitablegrowth.org/wp-content/uploads/2020/12/122120-turnover-costs-ib.pdf. The data is 
found in the methodological appendix, located in the Docket for this 
rulemaking.
    \189\ $36.78 x 2,080 = $76,502. DHS assumes that all EAD renewal 
applicants are employed full-time; DHS recognizes that some 
employees may work only part-time. However, the $76,502 represents 
the maximum of the range and employees who earn less wages, such as 
those who work part-time, are captured by the lower salaries 
included in the range for LTC estimates.
    \190\ For the specific data points used, see the Technical 
Appendix, located in the Docket for this rulemaking.
    \191\ OCB indicates that the multiple continuous distributions 
are appropriate for the data but ranks the Beta distribution highest 
in terms of goodness of fit with an A-D test statistic of 0.1336. 
The four produced parameters are as follows: minimum= 0.0314, 
maximum = .987, alpha = 1.214, Beta = 4.267.
---------------------------------------------------------------------------

    DHS notes that the studies utilized to develop the turnover cost 
percentage range are based on diverse studies across a range of 
industries and that they that measure these costs different ways. DHS 
welcomes public input concerning the range we rely on as well as the 
way in which turnover costs are tabulated in terms of direct and 
indirect costs, including productivity effects.
    Based on an average of 2,080 annual work hours, the unburdened 
effective minimum $11.80 hourly wage maps to annual earnings 
(EA) of $24,544. We have made an additional adjustment 
regarding the population. This rule will provide EAD renewal applicants 
with stabilized earnings for an additional 360 days and will prevent 
turnover costs for employers of applicants whose EADs will be 
adjudicated within the 360-day timeframe of the rule. However, for the 
0.32 percent of the population whose EAD renewal application could 
still be pending after 360 days, this rule will delay the turnover 
costs, not prevent them. Accordingly, we have scaled the population to 
exclude 0.32 percent of the population whose EAD could still lapse. DHS 
also recognizes that a certain number of individuals may have been 
terminated or chosen to leave irrespective of this rule and, 
accordingly, this rule won't prevent such turnover. DHS does not have 
data on the number of EAD renewal applicants that would have been 
terminated from or left their jobs had they not lost employment 
authorization. DHS requests comment on data that could be used to make 
such an adjustment.
    We calibrated the Beta distribution for the four parameters 
produced and under the ``define forecast'' function, entered the 
program: PA x EA x LC with correlation tuned to 0.661.\192\ Nesting the 
correlation essentially means that if a randomly chosen earnings value 
is high, there is a higher probability that a high turnover cost 
percentage will be selected as well and vice versa for lower cost 
percentages. The tuning features for the system are listed in Table 14, 
which includes the four parameters for the distribution.
---------------------------------------------------------------------------

    \192\ Adjusted Population x (1-0.32%) of the population whose 
EAD would be adjudicated after the 540-day auto-extension window x 
$11.80 to $36.78 Hourly Earnings x Beta Distributed Labor Turnover 
Cost.

                               Table 14--Calibration for Turnover Cost Estimation
----------------------------------------------------------------------------------------------------------------
                                                  Minimum    Maximum                  Distribution
----------------------------------------------------------------------------------------------------------------
Population (P).................................    265,987    374,343  Uniform.
Earnings (annual, E)...........................  $24,544.0   76,502.4  Uniform.
Turnover cost % (L)............................       4.1%      68.7%  Beta: \193\
                                                                       Minimum: .031.
                                                                       Maximum: .987.
                                                                       Alpha: 1.214.
                                                                       Beta: 4.27.
                                                ----------------------------------------------------------------
Correlation: Turnover Cost % and Earnings......                                .661
----------------------------------------------------------------------------------------------------------------
Source: USCIS Analysis.

     
---------------------------------------------------------------------------

    \193\ The beta distribution includes two parameters, alpha 
([alpha]) and beta ([beta]), which control the shape of distribution 
and thus influence the minimum and maximum values.
---------------------------------------------------------------------------

    We ran 100,000 randomized seed trials, which is sufficient to 
generate a 95 percent level of precision in the results and tuned the 
simulation to cutoff trials with an LC greater than the 
maximum in our sample, of 68.7 percent. Based on the simulation, the 
expected value is $4,371.6 million, and the 95 percent precision bound 
results in a range of forecasts from $454.5.0 million to $ 13,509.3 
million.\194\
---------------------------------------------------------------------------

    \194\ When there are correlated assumptions, OCB does not 
provide sensitivity for the uncorrelated input, which, in this case, 
is the population. As a result, the sensitivity analysis indicates 
that the variation in the forecasts was contributed somewhat equally 
by the cost percentage (56.7 percent) and the annual earnings (42.7 
percent).
---------------------------------------------------------------------------

Module D. Monetized Impacts for the TFR
    In Table 15 we collate the undiscounted monetized impacts derived 
from the above sections.

[[Page 26647]]



         Table 15--Summary of Monetized Impact Estimates Applicable to Labor Earnings and Labor Turnover
                                           [Undiscounted, in millions]
----------------------------------------------------------------------------------------------------------------
                                                Labor earnings                         Tax impacts *
                                   -----------------------------------------------------------------------------
                                        Min          Mean         Max          Min          Mean         Max
----------------------------------------------------------------------------------------------------------------
Stabilized earnings...............       $159.2     $3,354.3    $12,506.4        $16.8       $353.9     $1,319.6
Labor turnover....................        454.5      4,371.6     13,509.3          0.0          0.0          0.0
                                   -----------------------------------------------------------------------------
    Total.........................        613.7      7,725.9     26,015.7         16.8        353.9      1,319.6
----------------------------------------------------------------------------------------------------------------
* If, without this rule, businesses could not find replacement labor for any of the affected EAD holders, the
  tax impacts shown represent the loss in employment taxes this rule would prevent. The actual amount will
  depend on how easily businesses would have been able to find replacement labor in the absence of this rule.

    Because the TFR will apply to more than one full fiscal year, we 
also apply a discounting framework to the impacts. Since there is a 
one-to-one mapping from the population to the impacts, we can derive 
the yearly allocations directly from the population figures. The 
approach, encapsulated in Table 16 in step-by step fashion, builds off 
the population data in Tables 10 and 11. By grouping the current and 
near-term populations into year one, and then calculating the portion 
of the future population attributable to year one, we can logically 
calculate the year two allocation.

       Table 16--Worksheet for Impact Allocation Across Two Years
------------------------------------------------------------------------
                                                               High
           Population segment             Low population    population
------------------------------------------------------------------------
A. Current..............................          57,795          57,795
B. Near-term............................          85,956          85,956
C. Year 1 initial (A+B).................         143,751         143,751
D. Future...............................         123,091         231,794
E. Total TFR months.....................              18              18
F. Future by month (D/E)................           6,838          12,877
G. Year 1 months........................              12              12
H. Year 2 months (E-G)..................               6               6
I. Year 1 addition (G*F)................          82,060         154,529
J. Year 1 total (C+I)...................         225,811         298,280
K. Year 2 (H*F).........................          41,030          77,265
L. Total (check: J+K)...................         266,841         375,545
M. Year 1 allocation (J/L)..............           84.6%           79.4%
N. Year 2 allocation (K/L)..............           15.4%           20.6%
                                         -------------------------------
O. Average share: year 1................               82.0%
P. Average share: year 2................               18.0%
------------------------------------------------------------------------

    As can be gathered from rows M and N, the allocations are different 
according to the high and low population. However, the impact estimates 
already have incorporated the population variation, meaning that we 
need to rely on a single percentage for the share allocations. Since 
the shares are close across the population bounds, we average them and 
apply the resulting figures, of 82.0 percent and 18.0 percent, in order 
(Rows O and P).
    Table 17 provides the allocated impacts according to the allocation 
derived above, incorporating sub-tables A-C, to account for the 
average, and low and high ends of the certainty bound in order. Each 
sub-table is organized into three additional sections, to account for 
undiscounted terms, and those at 3 percent rate of discount, and a 7 
percent rate of discount, in order. We parsed out the stabilized 
earnings and labor turnover impacts separately, as they will embody 
different types of impacts.

                             Table 17--Monetized Expected Value Impacts for the TFR
                                                   [Millions]
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
                        Undiscounted                           Stabilized        Labor        Total      Taxes *
                                                                 earnings     turnover
----------------------------------------------------------------------------------------------------------------
                                           A. Average (Expected Value)
----------------------------------------------------------------------------------------------------------------
Year 1......................................................     $2,751.4     $3,585.8     $6,337.2       $290.3
Year 2......................................................        602.9        785.8      1,388.7         63.6
                                                             ---------------------------------------------------
    Total...................................................      3,354.3      4,371.6      7,725.9        353.9
----------------------------------------------------------------------------------------------------------------


[[Page 26648]]


                        Table 17--Monetized Expected Value Impacts for the TFR--Continued
                                                   [Millions]
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
                         3% Discount                           Stabilized        Labor        Total        Taxes
                                                                 earnings     turnover
----------------------------------------------------------------------------------------------------------------
Year 1......................................................     $2,671.2     $3,481.4     $6,152.6       $281.9
Year 2......................................................        568.3        740.7      1,309.0         60.0
                                                             ---------------------------------------------------
    Total...................................................      3,239.6      4,222.1      7,461.6        341.8
Annualized..................................................      1,693.0      2,206.5      3,899.5       178.64
----------------------------------------------------------------------------------------------------------------
                         7% Discount                           Stabilized        Labor        Total        Taxes
                                                                 earnings     turnover
----------------------------------------------------------------------------------------------------------------
Year 1......................................................     $2,571.4     $3,351.2     $5,922.6       $271.3
Year 2......................................................        526.6        686.3      1,213.0         55.6
                                                             ---------------------------------------------------
    Total...................................................      3,098.0      4,037.6      7,135.6        326.9
Annualized..................................................      1,713.5      2,233.1      3,946.6        180.8
----------------------------------------------------------------------------------------------------------------
                                          B. Low end of certainty range
----------------------------------------------------------------------------------------------------------------
                        Undiscounted                           Stabilized        Labor        Total      Taxes *
                                                                 earnings     turnover
----------------------------------------------------------------------------------------------------------------
Year 1......................................................       $130.6       $372.8       $503.4        $13.8
Year 2......................................................         28.6         81.7        110.3          3.0
                                                             ---------------------------------------------------
    Total...................................................        159.2        454.5        613.7         16.8
Average.....................................................         79.6        227.3        306.9          8.4
----------------------------------------------------------------------------------------------------------------
                         3% Discount                           Stabilized        Labor        Total        Taxes
                                                                 earnings     turnover
----------------------------------------------------------------------------------------------------------------
Year 1......................................................       $126.8       $361.9       $488.7        $13.4
Year 2......................................................         27.0         77.0        104.0          2.8
                                                             ---------------------------------------------------
    Total...................................................        153.8        439.0        592.7         16.2
Annualized..................................................        80.35        229.4        309.8          8.5
----------------------------------------------------------------------------------------------------------------
                         7% Discount                           Stabilized        Labor        Total        Taxes
                                                                 earnings     turnover
----------------------------------------------------------------------------------------------------------------
Year 1......................................................       $122.0       $348.4       $470.5        $12.9
Year 2......................................................         25.0         71.4         96.4          2.6
                                                             ---------------------------------------------------
    Total...................................................        147.0        419.8        566.8         15.5
Annualized..................................................         81.3        232.2        313.5          8.6
----------------------------------------------------------------------------------------------------------------
                                         C. High End of Certainty Range
----------------------------------------------------------------------------------------------------------------
                        Undiscounted                           Stabilized        Labor        Total      Taxes *
                                                                 earnings     turnover
----------------------------------------------------------------------------------------------------------------
Year 1......................................................    $10,258.4    $11,081.0    $21,339.3     $1,082.4
Year 2......................................................      2,248.0      2,428.3      4,676.4        237.2
                                                             ---------------------------------------------------
    Total...................................................     12,506.4     13,509.3     26,015.7      1,319.6
Average.....................................................      6,253.2      6,754.7     13,007.9        659.8
----------------------------------------------------------------------------------------------------------------
                         3% Discount                           Stabilized        Labor        Total        Taxes
                                                                 earnings     turnover
----------------------------------------------------------------------------------------------------------------
Year 1......................................................     $9,959.6    $10,758.2    $20,717.8     $1,050.9
Year 2......................................................      2,119.0      2,288.9      4,407.9        223.6
                                                             ---------------------------------------------------
    Total...................................................     12,078.6     13,047.2     25,125.7      1,274.5
Annualized..................................................     6,312.39      6,818.6     13,131.0        666.1
----------------------------------------------------------------------------------------------------------------


[[Page 26649]]


                        Table 17--Monetized Expected Value Impacts for the TFR--Continued
                                                   [Millions]
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
                         7% Discount                           Stabilized        Labor        Total        Taxes
                                                                 earnings     turnover
----------------------------------------------------------------------------------------------------------------
Year 1......................................................     $9,587.2    $10,054.4    $19,943.3     $1,011.6
Year 2......................................................      1,963.5      1,999.2      4,084.5        207.2
                                                             ---------------------------------------------------
    Total...................................................     11,550.8     12,053.7     24,027.8      1,218.8
Annualized..................................................      6,388.6      6,666.8     13,289.6        674.1
----------------------------------------------------------------------------------------------------------------
* If, without this rule, businesses could not find replacement labor for any of the affected EAD holders, the
  tax impacts shown represent the loss in employment taxes this rule would prevent. The actual amount will
  depend on how easily businesses would have been able to find replacement labor in the absence of this rule.

    For the discounted figures, the annualized amounts are the average 
annual equivalence basis. Since the inputs are different for each year, 
the annualized terms differ across discount rates.
Module E. Economic and Business Impacts
    As explained previously, DHS does not know what the next best 
alternative would have been for businesses without this rule. 
Accordingly, DHS does not know the proportion of the stabilized labor 
earnings estimates developed above that would represent cost savings to 
businesses for prevented lost productivity or are prevented transfer 
payments from affected EAD holders to replacement labor.\195\ These 
effects are very difficult to quantify and could be influenced by 
multiple factors, but we will address the possibilities at a conceptual 
level.
---------------------------------------------------------------------------

    \195\ Transfer payments are monetary payments from one group to 
another that do not affect total resources available to society. See 
OMB Circular A-4 pages 14 and 38 for further discussion of transfer 
payments and distributional effects. Circular A-4 (Sept. 17, 2003), 
https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A4/a-4.pdf.
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    In the cases where, in the absence of this rule, businesses would 
have been able to easily find reasonable labor substitutes for the EAD 
renewal applicants, then the impact of this rule is preventing a 
distributional impact where the earnings of affected EAD holders would 
be transferred to others, who might fill in for (and presumably 
replace) the EAD renewal applicants during their earnings lapse. The 
portion of the total estimate of stabilized income that would represent 
this prevented transfer payment will depend on the ability of 
businesses to have found replacement labor in the absence of this rule.
    In the cases where, in the absence of this rule, businesses would 
not have been able to easily find reasonable labor substitutes for the 
EAD renewal applicants, then the impact of this rule is preventing an 
associated loss of productivity for employers. Therefore, the portion 
of the total estimate of stabilized income that would represent cost 
savings to employers for prevented productivity losses will depend on 
the ability of businesses to have found replacement labor in the 
absence of this rule. In this case, the rule may also result in 
additional cost savings to employers for prevented profit losses and 
having to choose the next best alternative to the EAD holder.
    DHS does not know what this next-best alternative may be for those 
companies. However, if the replacement candidate would have been 
substitutable for the affected EAD renewal applicant to a high degree, 
the labor performed by the new candidate would not have resulted in 
changes to profits or productivity. Accordingly, if the replacement 
labor is highly substitutable, we wouldn't expect this rule to result 
in cost savings for productivity loss as a result of employing the next 
available alternative for labor. If, however, the replacement labor is 
a poor substitute and would have decreased productivity, then this rule 
will preserve that lost productivity.
    The above discussion involves two important points: If employers 
replaced individuals who faced a lapse in their EAD after the automatic 
extension with others in the labor force, then once the EAD was 
eventually reauthorized the EAD holder would need to conduct a new 
search for a new job. They would thus incur direct costs associated 
with seeking new employment. In addition, it can take time to establish 
new employment. According to the Bureau of Labor Statistics, in 
November 2021 the average duration of unemployment was 28.9 weeks 
(about 7 months) and the median duration was 12.7 weeks (about 3 
months).\196\ This has varied historically, according to factors such 
as the overall strength of the economy, employment conditions in 
specific industries, individual search effort, and geographical 
considerations.\197\
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    \196\ Bureau of Labor Statistics, Employment Situation News 
Release (November 2021), Table A-12, https://www.bls.gov/news.release/archives/empsit_12032021.htm.
    \197\ Bureau of Labor Statistics, Duration of Unemployment, 
Seasonally Adjusted, https://www.bls.gov/charts/employment-situation/duration-of-unemployment.htm (last visited Mar. 9, 2022).
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    Based on this average search time, in cases where affected EAD 
renewal applicants would not be able to immediately return to their 
previous jobs once their EAD is approved, the duration of lapsed 
earnings this TFR is addressing is likely higher than that we have 
relied on from the analysis of the data. As a result, search costs and 
the potential for earnings to continue to lapse even when the 
individuals affected are able to return to work probably makes our 
estimated impacts of the amount in stabilized earnings to affected EAD 
holders smaller than the actual impacts. However, we do not have a 
method to allocate the job search time to a portion that could be 
conducted while the EAD was in lapse mode and a portion that would need 
to be held off until the Form I-765 renewal application was approved 
and a new EAD issued. Therefore, it would be speculative to try to 
incorporate these additional factors into a cohesive model and thus we 
have not quantified them.
Module F. Other Impacts
    DHS does not expect material impacts to the U.S. labor market from 
this TFR. According to the most recent data (applicable to November 
2021), the U.S. labor force stands at 162,052,000.\198\ The maximum 
population impacted by the TFR is 375,545, which is only 0.23 percent 
of the national labor force.
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    \198\ BLS, Employment Situation, Table A-1. Employment status of 
the civilian population by sex and age. The figure applies to the 
civilian labor force, seasonally adjusted, https://www.bls.gov/news.release/archives/empsit_12032021.htm (last visited Dec. 14, 
2021).
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    Without this rule, EAD holders who remain eligible for employment 
authorization would encounter delays

[[Page 26650]]

in EAD renewals and either be unauthorized to work for periods of time, 
or lack documentation reflecting their employment authorization. This 
rule is not making additional categories eligible for employment 
authorization; it simply temporarily increases the 180-day timeframe 
for those already eligible for an automatic extension. It will ensure 
that these EAD holders do not experience gaps in employment as a result 
of USCIS processing delays. Accordingly, stabilized earnings for these 
EAD holders may also relieve the support network of the applicants for 
any monetary or other support that would have been necessary during 
such a period of unemployment. This network could include public and 
private entities, and it may comprise family and personal friends, 
legal services providers and advisors, religious and charity 
organizations, State and local public institutions, educational 
providers, and non-governmental organizations. DHS believes these 
impacts would accrue as benefits to the noncitizen EAD holders and 
their families.
    Finally, we have already noted that the goal of this TFR is to 
prevent EADs from lapsing, and that the 540-day benchmark would cover 
almost every case. For the small portion that lapsed for more than 540 
days, we have already noted that these would embody extreme outliers 
and may be skewed by data errors. Nevertheless, for purposes of 
transparency we provide Table 18, which shows the share of EADs that 
would lapse under several alternatives to the 360-day extension to the 
existing 180-day benchmark.

     Table 18--Percentage of EADs That Would Lapse Under Alternative
                         Extension-Day Scenarios
------------------------------------------------------------------------
                                                            Share that
 The number of extension days added to the existing 180     would lapse
                                                             (percent)
------------------------------------------------------------------------
30......................................................            57.7
60......................................................            35.3
90......................................................            19.0
120.....................................................            8.41
180.....................................................            1.44
360.....................................................            0.32
540+....................................................            0.10
------------------------------------------------------------------------

    It is important to note that our analysis was based on data from 
June through December of 2021. If processing times and resultant 
backlogs are higher now, than lapse-durations would potentially also be 
higher, and the shares affected may be larger than those shown in Table 
16.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA), requires an agency to prepare and make available to the 
public a regulatory flexibility analysis that describes the effect of 
the rule on small entities (i.e., small businesses, small 
organizations, and small governmental jurisdictions). The RFA's 
regulatory flexibility analysis requirements apply only to those rules 
for which an agency is required to publish a general notice of proposed 
rulemaking pursuant to 5 U.S.C. 553(b) or any other law. See 5 U.S.C. 
604(a). As discussed previously, USCIS did not issue a notice of 
proposed rulemaking for this action. Therefore, a regulatory 
flexibility analysis is not required for this rule.

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

    The Congressional Review Act (CRA) was included as part of SBREFA 
by section 804 of SBREFA, Public Law 104-121, 110 Stat. 847, 868, et 
seq. OIRA has determined that this TFR is a major rule as defined by 
the CRA because it will result in a major increase in costs or 
prices.\199\ DHS has complied with the CRA's reporting requirements and 
has sent this rule to Congress and to the Comptroller General as 
required by 5 U.S.C. 801(a)(1). As stated in section IV.A of this 
preamble, DHS has found that there is good cause to conclude that 
notice, the opportunity for advanced public participation, and a delay 
in the effective date are impracticable and contrary to the public 
interest. Accordingly, this rule is effective immediately upon 
publication.\200\
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    \199\ See 5 U.S.C 804(2).
    \200\ See 5 U.S.C. 808(2).
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E. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among 
other things, to curb the practice of imposing unfunded Federal 
mandates on State, local, and Tribal governments. Title II of UMRA 
requires each Federal agency to prepare a written statement assessing 
the effects of any Federal mandate in a proposed rule, or final rule 
for which the agency published a proposed rule, that includes any 
Federal mandate that may result in a $100 million or more expenditure 
(adjusted annually for inflation) in any one year by State, local, and 
Tribal governments, in the aggregate, or by the private sector.\201\ 
This rule is exempt from the written statement requirement, because DHS 
did not publish a notice of proposed rulemaking for this rule.
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    \201\ See 2 U.S.C. 1532(a).
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    In addition, this rule does not contain a Federal mandate as the 
term is defined under UMRA.\202\ The requirements of title II of UMRA, 
therefore, do not apply, and DHS has not prepared a statement under 
UMRA.
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    \202\ The term ``Federal mandate'' means a Federal 
intergovernmental mandate or a Federal private sector mandate. See 2 
U.S.C. 1502(1) and 658(6).
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F. Executive Order 13132 (Federalism)

    This rule does not have substantial direct effects on the States, 
on the relationship between the National Government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with section 6 of E.O. 
13132, 64 FR 43255 (Aug. 4, 1999), this rule does not have sufficient 
federalism implications to warrant the preparation of a federalism 
summary impact statement.

G. Executive Order 12988 (Civil Justice Reform)

    This rule was drafted and reviewed in accordance with E.O. 12988, 
Civil Justice Reform. This rule was written to provide a clear legal 
standard for affected conduct and was reviewed carefully to eliminate 
drafting errors and ambiguities, so as to minimize litigation and undue 
burden on the Federal court system. DHS has determined that this rule 
meets the applicable standards provided in section 3 of E.O. 12988.

H. National Environmental Policy Act

    DHS Directive 023-01 Rev. 01 and Instruction Manual 023-01-001-01 
Rev. 01 (Instruction Manual) \203\ establish the policies and 
procedures that DHS and its components use to comply with the National 
Environmental Policy Act (NEPA) and the Council on Environmental 
Quality (CEQ) regulations for implementing NEPA.\204\
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    \203\ The Instruction Manual contains the Department's 
procedures for implementing NEPA and was issued November 6, 2014. 
Instruction Manual, https://www.dhs.gov/publication/directive-023-01-rev-01-and-instruction-manual-023-01-001-01-rev-01-and-catex 
(last updated Nov. 12, 2021).
    \204\ 40 CFR parts 1500 through 1508.
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    The CEQ regulations allow Federal agencies to establish, with CEQ 
review and concurrence, categories of actions (``categorical 
exclusions'') that experience has shown do not have a significant 
effect on the human environment and, therefore, do not

[[Page 26651]]

require an environmental assessment or environmental impact 
statement.\205\
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    \205\ 40 CFR 1507.3(e)(2)(ii) and 1501.4.
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    The Instruction Manual establishes categorical exclusions that DHS 
has found to have no such effect.\206\ Under DHS NEPA implementing 
procedures, for an action to be categorically excluded it must satisfy 
each of the following three conditions: (1) The entire action clearly 
fits within one or more of the categorical exclusions; (2) the action 
is not a piece of a larger action; and (3) no extraordinary 
circumstances exist that create the potential for a significant 
environmental effect.\207\
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    \206\ See Appendix A, Table 1.
    \207\ See Instruction Manual section V.B(2)(a) through (c).
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    This rule amends 8 CFR 274a.13(d) to temporarily increase the 
period of time that the employment authorization and/or EADs of certain 
eligible Form I-765 renewal applicants are automatically extended while 
their renewal applications remain pending with USCIS. More 
specifically, this rule provides that the automatic extension period 
applicable to expiring EADs for certain renewal applicants who have 
filed Form I-765 will be increased from up to 180 days to up to 540 
days.
    Amending the current rule to increase the automatic extension 
period for employment authorization and/or EADs' validity from 180 days 
to 540 days will not result in any meaningful, calculable change in 
environmental effect with respect to the number of individuals affected 
by current EAD renewal requirements. Furthermore, this rule's amendment 
will not alter immigration eligibility criteria or result in an 
increase in the number of individuals who will be eligible for 
employment authorization and/or EADs. Therefore, DHS has determined 
that the temporary amendment to 8 CFR 274a.13 clearly fits within 
Categorical Exclusion A3(d) contained in the Instruction Manual because 
it amends a regulation without changing its environmental effect. 
Furthermore, DHS has determined that this rule fits within Categorical 
Exclusion A3(a) contained in the Instruction Manual because DHS 
considers temporarily increasing the automatic extension period for 
employment authorizations and/or EADs for certain renewal applicants to 
be an action of a strictly administrative or procedural nature.
    The temporary amendment to 8 CFR 274a.13 is a standalone action to 
increase an automatic extension period. It is not part of a larger 
action. This amendment will not result in any major Federal action that 
will significantly impact the human environment. Furthermore, USCIS has 
determined that no extraordinary circumstances exist that would create 
the potential for significant environmental effects. Therefore, this 
rule amendment is categorically excluded from further NEPA review.

I. Family Assessment

    DHS has reviewed this rule in line with the requirements of section 
654 of the Treasury and General Government Appropriations Act, 
1999,\208\ enacted as part of the Omnibus Consolidated and Emergency 
Supplemental Appropriations Act, 1999.\209\ DHS has systematically 
reviewed the criteria specified in section 654(c)(1), by evaluating 
whether this regulatory action: (1) Impacts the stability or safety of 
the family, particularly in terms of marital commitment; (2) impacts 
the authority of parents in the education, nurture, and supervision of 
their children; (3) helps the family perform its functions; (4) affects 
disposable income or poverty of families and children; (5) only 
financially impacts families, if at all, to the extent such impacts are 
justified; (6) may be carried out by State or local government or by 
the family; or (7) establishes a policy concerning the relationship 
between the behavior and personal responsibility of youth and the norms 
of society. If the agency determines a regulation may negatively affect 
family well-being, then the agency must provide an adequate rationale 
for its implementation.
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    \208\ See 5 U.S.C. 601 note.
    \209\ Public Law 105-277, 112 Stat. 2681 (1998).
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    DHS has determined that the implementation of this regulation will 
not negatively affect family well-being and will not have any impact on 
the autonomy or integrity of the family as an institution.

J. Paperwork Reduction Act

    This rule does not propose new, or revisions to existing, 
``collection[s] of information'' as that term is defined under the 
Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. chapter 
35, and its implementing regulations, 5 CFR part 1320. As this is a TFR 
that only will increase the duration of an automatic extension of 
employment authorization and EAD, USCIS does not anticipate a need to 
update the Form I-765 or to collect additional information beyond that 
already collected on Form I-765.

List of Subjects in 8 CFR Part 274a

    Administrative practice and procedure, Aliens, Employment, 
Penalties, Reporting and recordkeeping requirements.

    Accordingly, for the reasons set forth in the preamble, the 
Secretary of Homeland Security amends 8 CFR part 274a as follows:

PART 274a CONTROL OF EMPLOYMENT OF ALIENS

0
1. The authority citation for part 274a continues to read as follows:

    Authority: 8 U.S.C. 1101, 1103, 1324a; 48 U.S.C. 1806; 8 CFR 
part 2; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 114-
74, 129 Stat. 599.

0
2. Effective May 4, 2022, through October 15, 2025, amend Sec.  274a.13 
by adding paragraph (d)(5) to read as follows:


Sec.  274a.13   Application for employment authorization.

* * * * *
    (d) * * *
    (5) Temporary increase in the automatic extension period. The 
authorized extension period stated in paragraph (d)(1) of this section, 
8 CFR 274a.2(b)(1)(vii), and referred to in paragraphs (d)(3) and (4) 
of this section is increased to up to 540 days for all eligible classes 
of aliens as described in paragraph (d)(1) who properly filed their 
renewal application on or before October 26, 2023. Such automatic 
extension period will automatically terminate the earlier of up to 540 
days after the expiration date of the Employment Authorization Document 
(Form I-766, or successor form) or upon issuance of notification of a 
denial on the renewal request, even if such date is after October 26, 
2023. Aliens whose automatic extension under paragraph (d)(1) expired 
before May 4, 2022, will receive an automatic resumption of employment 
authorization and the validity of their Employment Authorization 
Document, as applicable, for an additional period beginning from May 4, 
2022, and up to 540 days from the expiration of their employment 
authorization and/or Employment Authorization Document as shown on the 
face of such document. An Employment Authorization Document that has 
expired on its face is considered unexpired when combined with a Notice 
of Action (Form I-797C), which demonstrates that the requirements of 
paragraph (d)(1) of this section and this paragraph (d)(5) have been 
met, notwithstanding any notations on such notice indicating an 
automatic extension of up to 180 days.

[[Page 26652]]

Nothing in this paragraph (d)(5) will affect DHS's ability to otherwise 
terminate any employment authorization or Employment Authorization 
Document, or extension period for such employment authorization or 
document, by written notice to the applicant, by notice to a class of 
aliens published in the Federal Register, or as provided by statute or 
regulation, including 8 CFR 274a.14.

Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2022-09539 Filed 5-3-22; 8:45 am]
BILLING CODE 9111-97-P