Federal Register, Volume 87 Issue 86 (Wednesday, May 4, 2022)

[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

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

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]]

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

DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 274a

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

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

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

ACTION: Temporary final rule with request for comments.

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

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

\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).
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

\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).
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

\3\ See 8 CFR 274a.12(a).
---------------------------------------------------------------------------

Noncitizens in the second class, described at 8 CFR
274a.12(b), also are authorized to work ``incident to status'' as a
condition of their immigration status or circumstances, but generally
the authorization is valid only for a ``specific employer;'' \4\ and
---------------------------------------------------------------------------

\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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

\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'').
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\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).
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

\8\ See 8 CFR 274.12(a) and (c).
---------------------------------------------------------------------------

3. Automatic Extensions of EADs for Renewal Applicants: 8 CFR
274a.13(d)
a. Renewing Employment Authorization and/or EADs
EADs are not valid indefinitely, but instead expire after a
specified period of time.\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\
---------------------------------------------------------------------------

\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).
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

\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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

\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.
---------------------------------------------------------------------------

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).
---------------------------------------------------------------------------

\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'').
---------------------------------------------------------------------------

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:
---------------------------------------------------------------------------

\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).'').
---------------------------------------------------------------------------

The renewal applicants timely file an application to renew
their employment authorization and/or EAD on Form I-765 before the EAD
expires; \21\
---------------------------------------------------------------------------

\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.
---------------------------------------------------------------------------

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

\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).
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

\23\ See 8 CFR 274a.13(d)(iii).
---------------------------------------------------------------------------

The following classes of noncitizens filing to renew an EAD may be
eligible to receive an automatic extension of their employment
authorization and/or EAD for up to 180 days, which USCIS discusses in
detail at https://www.uscis.gov/eadautoextend: \24\
---------------------------------------------------------------------------

\24\ See DHS, USCIS, Automatic Employment Authorization Document
(EAD) Extension, https://www.uscis.gov/eadautoextend (last updated
Nov. 12, 2021).
---------------------------------------------------------------------------

Noncitizens admitted as refugees (A03).\25\
---------------------------------------------------------------------------

\25\ See 8 CFR 274a.12(a)(3).
---------------------------------------------------------------------------

Noncitizens granted asylum (A05).\26\
---------------------------------------------------------------------------

\26\ See 8 CFR 274a.12(a)(5).
---------------------------------------------------------------------------

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

\27\ See 8 CFR 274a.12(a)(7).
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

\28\ See 8 CFR 274a.12(a)(8).
---------------------------------------------------------------------------

Noncitizens granted withholding of deportation or removal
(A10).\29\
---------------------------------------------------------------------------

\29\ See 8 CFR 274a.12(a)(10).
---------------------------------------------------------------------------

Noncitizens granted TPS, regardless of the employment
authorization category on their current EADs (A12 or C19).\30\
---------------------------------------------------------------------------

\30\ See 8 CFR 274a.12(a)(12) or (c)(19).
---------------------------------------------------------------------------

Noncitizen spouses of E-1/2/3 nonimmigrants (Treaty
Trader/Investor/Australian Specialty Worker) (A17).\31\
---------------------------------------------------------------------------

\31\ See INA sec. 214(e)(2), 8 U.S.C. 1184(e)(2).
---------------------------------------------------------------------------

Noncitizen spouses of L-1 nonimmigrants (Intracompany
Transferees) (A18).\32\
---------------------------------------------------------------------------

\32\ See INA sec. 214(c)(2)(E), 8 U.S.C. 1184(c)(2)(E).
---------------------------------------------------------------------------

Noncitizens who have properly filed applications for TPS
and who have been deemed prima facie eligible for TPS under 8 CFR
244.10(a) and have received an EAD as a ``temporary treatment benefit''
under 8 CFR 244.10(e) and 274a.12(c)(19) (C19).\33\
---------------------------------------------------------------------------

\33\ See 8 CFR 274a.12(c)(19).
---------------------------------------------------------------------------

Noncitizens who have properly filed applications for
asylum and withholding of deportation or removal (C08).\34\
---------------------------------------------------------------------------

\34\ See 8 CFR 274a.12(c)(8).
---------------------------------------------------------------------------

Noncitizens who have filed applications for adjustment of
status to lawful permanent resident under section 245 of the INA, 8
U.S.C. 1255 (C09).\35\
---------------------------------------------------------------------------

\35\ See 8 CFR 274a.12(c)(9).
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

\36\ See 8 CFR 274a.12(c)(10).
---------------------------------------------------------------------------

Noncitizens who have filed applications for creation of
record of lawful admission for permanent residence (C16).\37\
---------------------------------------------------------------------------

\37\ See 8 CFR 274a.12(c)(16).
---------------------------------------------------------------------------

Noncitizens who have properly filed legalization
applications pursuant to section 210 of the INA, 8 U.S.C. 1160
(C20).\38\
---------------------------------------------------------------------------

\38\ See 8 CFR 274a.12(c)(20).
---------------------------------------------------------------------------

Noncitizens who have properly filed legalization
applications pursuant to section 245A of the INA, 8 U.S.C. 1255a
(C22).\39\
---------------------------------------------------------------------------

\39\ See 8 CFR 274a.12(c)(22).
---------------------------------------------------------------------------

Noncitizens who have filed applications for adjustment of
status pursuant to section 1104 of the Legal Immigration Family Equity
Act (C24).\40\
---------------------------------------------------------------------------

\40\ See 8 CFR 274a.12(c)(24).
---------------------------------------------------------------------------

Noncitizen spouses (H-4) of H-1B nonimmigrants with an
unexpired Form I-94 showing H-4 nonimmigrant status (C26).\41\
---------------------------------------------------------------------------

\41\ See 8 CFR 274a.12(c)(26).
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

\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).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\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).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\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).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\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).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\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\
---------------------------------------------------------------------------

\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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\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).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\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.'').

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

[[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.
---------------------------------------------------------------------------

\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).
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

\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.
---------------------------------------------------------------------------

\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\
---------------------------------------------------------------------------

\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.
---------------------------------------------------------------------------

\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\
---------------------------------------------------------------------------

\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\
---------------------------------------------------------------------------

\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\
---------------------------------------------------------------------------

\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.
---------------------------------------------------------------------------

D. Emergency Temporary Solution To Address Current Backlog

The sudden 2-month increase in Form I-765 renewal filings in March
and April of 2021 and sustained overall increase in Form I-765 renewal
receipts thereafter prompted USCIS to directly address the growing
backlog of Form I-765 filings. Historically, USCIS had sufficient
resources to address growing backlogs by allocating additional officers
to a particular workload. However, USCIS was unable to do so in the
summer of 2021 due to understaffing, including reduced contracting
resources resulting from the prior years' fiscal situation; the broad
scope of backlogs across numerous benefit types; and competing
priorities, as discussed above. USCIS was, however, able to apply
overtime funds to the renewal Form I-765 workload in an attempt to
control the growing backlog during the last quarter of FY 2021.\104\
Indeed, USCIS observed an increase in Form I-765 renewal completions,
however, it was not enough to match the increased volume of receipts
and therefore USCIS' responsive measures mitigated but did not halt the
backlog growth.\105\ Considering the operational constraints described
above, USCIS also explored programmatic improvement initiatives and
updates to its policy and operational guidance in the summer of 2021 to
attempt to address prolonged Form I-765 processing times and their
impact. For example, USCIS launched a backlog reduction effort in
September 2021 to assess other options available to the agency to
address the severe and growing Form I-765 backlogs.\106\ It has become
apparent to USCIS, however, that its limited resources are insufficient
to appropriately address the growing backlogs, with the incoming volume
of Form I-765 renewal filings showing no signs of slowing. Further,
USCIS has assessed that the conventional measures USCIS had applied
(e.g., overtime) and was continuing to explore (e.g., through the
backlog reduction effort) will not be able to timely address the
impending loss of employment authorization and EAD validity.
---------------------------------------------------------------------------

\104\ See Section B.2 for more information on USCIS' use of
overtime funds as a tool to manage its workload.
\105\ For example, USCIS completed 15,904 Form I-765 C08
renewals in July 2021. After applying overtime funds to Form I-765s,
USCIS completed 23,987 and 24,267 Form I-765 C08 renewals in August
and September 2021, respectively. However, USCIS returned to its
prior completion rate in October 2021 (where USCIS completed 13,932
C08 renewals) due to such overtime funds no longer being available
in the new fiscal year. USCIS received additional appropriated
funding for overtime in FY 2022 to apply toward backlog reduction
efforts, but these funds only became available for operational use
in early 2022.
\106\ See, e.g., USCIS Policy Manual, Policy Alert (PA-2022-07),
Updating General Guidelines on Maximum Validity Periods for
Employment Authorization Documents based on Certain Filing
Categories (Feb. 7, 2022), https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20220207-EmploymentAuthorizationValidity.pdf.
---------------------------------------------------------------------------

1. Current Measures To Reduce the Backlog and Reduce Processing Times
Addressing Form I-765 processing times is a priority for USCIS.
Backlogs in general are a significant concern for the applicants who
are applying for benefits with USCIS because, as the backlogs increase,
applicants and petitioners experience longer wait times to receive a
decision on their benefit requests. This is especially concerning where
the backlog involves employment authorization, which is critical to
applicants' and their families' livelihoods as well as U.S. employers'
continuity of operations. USCIS understands the impact that delays in
receiving decisions and documentation have on applicants and
petitioners and is striving to address the backlogs and the resulting
negative consequences through a number of measures, including but not
limited to this TFR.
USCIS continues to recover from the pandemic-related impacts on
operations and revenue, leading to a gradually improving fiscal
situation, return to stability, and renewed capacity to undertake
initiatives to reduce backlogs. USCIS lifted the agency-wide hiring
freeze in March 2021. With the hiring freeze lifted, USCIS was able to
begin hiring staff in an attempt to return to pre-pandemic staffing
levels.\107\ Initial hiring was largely internal in order to fill
promotional vacancies, with public job announcements to hire from
outside USCIS following. This effort's impact is not realized
immediately, as it is lengthy, time-consuming, and ongoing.

[[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.
---------------------------------------------------------------------------

\107\ Such a long pause in hiring from May 1, 2020, to March
2021 resulted in approximately 2,000 unfilled vacancies, out of
approximately 20,000 positions across the agency. As of November 6,
2021, USCIS estimates the number of vacancies had risen to
approximately 3,000 due to primarily internal selections following
the hiring freeze, although USCIS did also add some positions as
well. USCIS estimates it will take the agency to the end of CY 2022
to fill the current level of vacancies. While USCIS did receive $250
million in funding from Congress for application processing, backlog
reduction, and the refugee program in late September 2021, it will
take time for such funding to translate to a significant increase in
additional officers proficient at adjudicating and completing Form
I-765 renewal applications. See Extending Government Funding and
Delivering Emergency Assistance Act, 2022, Public Law 117-43 (Sept.
30, 2021). USCIS has identified Form I-765 as well as Form I-485 and
Form I-589 (which represent two of the three major filing categories
seeking renewal EADs and eligible for automatic extension of the
prior EAD) for inclusion in backlog reduction efforts funded in part
by appropriations. The $250 million appropriated through Public Law
117-43, however, will only partly fund the 1,316 positions needed
for all of USCIS' backlog reduction initiatives; therefore, USCIS
continues to seek additional funding as requested in the FY 2022
President's Budget ($345 million).
---------------------------------------------------------------------------

USCIS is also in the process of developing a new Fee Rule to recoup
adjudicatory costs incurred at current levels, and to support the
agency's ability to match staffing levels with its workload in a
sustainable way. To effect more immediate change with EAD renewals,
USCIS reviewed its policies and procedures to update policy
guidance,\108\ expanded use of overtime hours as funding permitted, and
applied innovative approaches to backlog reduction using technology in
strategic ways, which initially is showing promising results.\109\ In
addition, USCIS is focused on addressing prolonged processing times
affecting applications and petitions that form the basis of a Form I-
765 filing and, therefore, indirectly impact Form I-765 renewal
processing times, such as in the case of asylum or adjustment of status
applications where a Form I-765 filing is based on the continued
pendency of such application.
---------------------------------------------------------------------------

\108\ See, e.g., USCIS Policy Manual, Policy Alert (PA-2021-25),
Employment Authorization for Certain H-4, E, and L Nonimmigrant
Dependent Spouses (Nov. 12, 2021), https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20211112-EmploymentAuthorization.pdf. See USCIS Policy Manual, Policy Alert
(PA-2021-10), Employment Authorization for Certain Adjustment
Applicants (June 9, 2021), https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20210609-EmploymentAuthorization.pdf. See USCIS Policy Manual, Policy Alert
(PA-2022-07), Updating General Guidelines on Maximum Validity
Periods for Employment Authorization Documents based on Certain
Filing Categories (Feb. 7, 2022), https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20220207-EmploymentAuthorizationValidity.pdf.
\109\ Efforts to improve timely processing and remove
bureaucratic hurdles are underway. One of the first initiatives is
to automatically identify pending applications that are no longer
needed (for example, a Form I-765 based on a pending adjustment
application is moot upon the applicant's adjustment of status to
that of a lawful permanent resident) and close them, thus
eliminating the need for an officer to review and allowing other
applications to proceed to adjudication more quickly. While initial
results of such initiatives are promising, it is too early to tell
what the long-term, sustained impacts on processing times will be.
USCIS continues to look for additional areas where systems can be
used to identify and complete simple functions that free up officer
resources for adjudicative work.
---------------------------------------------------------------------------

For example, an applicant seeking asylum is eligible for employment
authorization on the basis of the pendency of the asylum
application.\110\ USCIS currently grants employment authorization based
on a pending asylum application in 2-year increments.\111\ If an asylum
application is pending for up to 5 years or more, as is currently the
case for some applications,\112\ then an applicant must file to renew
employment authorization at least twice. If processing times for asylum
applications were reduced to 3 years, the applicant would need only
file to renew employment authorization once, saving USCIS adjudicatory
resources.
---------------------------------------------------------------------------

\110\ An asylee cannot apply for initial employment
authorization earlier than 150 calendar days after the date USCIS or
the immigration court accepts the asylum application.
\111\ This was the maximum time allowed under regulation until
February 7, 2022, when the U.S. District Court for the District of
Columbia vacated parts of 8 CFR 274a.12(c)(8) (``Employment
authorization may be granted according to the provisions of 8 CFR
208.7 of this chapter in increments to be determined by USCIS but
not to exceed increments of two years.''). See Asylumworks, et al.
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.
---------------------------------------------------------------------------

Another area in which USCIS is actively prioritizing its workload
is employment-based adjustment of status applications as backlogs in
adjudication of these applications also have downstream effects on EAD
application adjudications, as described above. While USCIS normally
processes approximately 115,000 employment-based adjustment of status
applications annually,\113\ generally to correspond with the number of
available employment-based immigrant visas minus the number typically
issued by Department of State annually, USCIS prioritized processing
employment-based adjustment applications to maximize available visa
usage in FY 2021. By the end of FY 2021, USCIS had processed and
approved approximately 172,000 employment-based adjustment of status
applications, an increase of approximately 50 percent above the typical
baseline; \114\ however, approximately 257,000 remained unadjudicated,
including approximately 75,000 impacted by priority date retrogressions
that may leave them pending for many years, and thereby eligible for
C09 EADs over this extended period.\115\ To the extent possible, USCIS
is committed to prioritizing employment-based adjustment of status
applications to utilize the available visa numbers each fiscal year;
doing so relieves applicants from filing Forms I-765 to seek renewal
EADs while their adjustment of status application remains pending since
lawful permanent residents are employment authorized incident to
status.\116\ Therefore, the more adjustment of status applications
USCIS is able to process, the fewer Form I-765 renewal applications
USCIS will receive (based on pending INA 245 adjustment of status
applications).
---------------------------------------------------------------------------

\113\ See DHS Office of Immigration Statistics, 2019 Yearbook of
Immigration Statistics, Table 6, Persons Obtaining Lawful Permanent
Resident Status by Type and Major Class of Admission: Fiscal Years
2010 2019 (Sep. 2020), https://www.dhs.gov/sites/default/files/publications/immigration-statistics/yearbook/2019/yearbook_immigration_statistics_2019.pdf.
\114\ See News Release, USCIS Announces FY 2021 Accomplishments,
(Dec. 15, 2021), https://www.uscis.gov/newsroom/news-releases/uscis-announces-fy-2021-accomplishments.
\115\ Applicants from China and India seeking adjustment of
status based on the employment-based third preference category
experienced visa retrogression in their respective filing categories
as of October 1, 2021, impacting approximately 75,000 applicants.
For more information on visa retrogression, see https://www.uscis.gov/green-card/green-card-processes-and-procedures/visa-availability-priority-dates/visa-retrogression (last updated Mar. 8,
2018). Based on a rate of approximately 8,000 visa numbers becoming
available for these affected categories per year, as was the case in
FY 2019, it may take more than 9 years for visas to become available
for these approximately 75,000 applicants. In the interest of
reducing the burden on both the agency and the public, on June 9,
2021, USCIS increased the maximum validity period for initial and
renewal EADs issued to applicants for adjustment of status under INA
245 from 1 year to 2 years based on average processing times. See
USCIS Policy Manual, Policy Alert, Employment Authorization for
Certain Adjustment Applicants (Jun 9, 2021), https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20210609-EmploymentAuthorization.pdf. USCIS' return to its processing goal of
3 months for Form I-765 renewal applications is critically important
for such applicants who may rely on timely renewals multiple times.
\116\ See 8 CFR 274a.12(a)(1).
---------------------------------------------------------------------------

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

[[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.
---------------------------------------------------------------------------

\117\ With certain exceptions, if a noncitizen continues to
engage in or accepts unauthorized employment, the individual may be
barred from adjusting status to that of a lawful permanent resident
under INA 245. See INA 245(c)(2) and (c)(8), 8 U.S.C. 1255(c)(2) and
(c)(8).
---------------------------------------------------------------------------

As noted, the current 180-day automatic extension under 8 CFR
274a.13(d)(1) for certain applicants who have properly filed Form I-765
for renewal of their employment authorization and/or EADs is an
insufficient time period to ensure against lapses in employment
authorization and/or EAD validity.\118\ In December 2020, the median
processing time for Form I-765 renewal applications eligible for the
automatic extension was 3.6 months (close to USCIS' processing goals),
ranging from 2.5 months to 5 months.\119\ At the end of December 2020,
there were approximately 3,300 applicants whose Form I-765 renewal
applications were still pending past their 180-day auto-extension
period.
---------------------------------------------------------------------------

\118\ See section II, Purpose of this Temporary Final Rule.
\119\ See section II, Purpose of this Temporary Final Rule,
Table 1. Recent Dramatic Growth in 50th and 93rd Percentile
Processing Times for Form I-765 Renewal Applications Filed by Top
Three Filing Categories.
---------------------------------------------------------------------------

However, Form I-765 processing times and Form I-765 renewal
applications pending beyond the 180-day period increased rapidly in the
second half of CY 2021 and continue to increase in CY 2022 despite
backlog mitigation efforts. As of December 31, 2021, the processing
time for EAD renewal applications (all categories) completed by USCIS
ranged from 6.1 months (median) to 10.1 months (93rd percentile) and
there were approximately 66,000 applicants whose Form I-765 renewal
applications were still pending past their 180-day automatic extension
period. This means that, as of December 31, 2021, approximately 66,000
applicants--at no fault of their own and because of circumstances
currently faced by USCIS--were not authorized to work and/or no longer
had a valid EAD to evidence their employment authorization,\120\
potentially jeopardizing their families' livelihoods.
---------------------------------------------------------------------------

\120\ Of the 66,000 applicants, 63,000 fall into the C08, C09,
and C10 categories and, therefore, are facing a gap of employment
authorization. The remaining 3,000 applicants fall into the
following EAD categories: Refugees (A03 under 8 CFR 274a.12(a)(3)),
asylees (A05 under 8 CFR 274a.12(a)(5)), and withholding of
deportation or removal beneficiaries (A10 under 8 CFR
274a.12(a)(10)). Such applicants are still authorized for employment
incident to status but would no longer have a valid EAD. For
purposes of this rule's analysis, DHS has determined that it is
appropriate to include the 3,000 applicants who are employment
authorized incident to status given their reasonable reliance on
USCIS' timely issuance of their renewal EADs. Also, it is unknown
how many applicants in this group have in their possession
acceptable alternative documentation they can show their employers
in order to maintain their employment (e.g., Form I-94 or an
unrestricted Social Security card together with an unexpired State-
issued driver's license pursuant to 8 CFR 274a.2(b)(1)(v)).
Moreover, through its public outreach efforts, DHS has learned that
job loss has affected this group on account of the lack of
sufficient documentation to present to employers for Form I-9
completion.

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

\121\ All U.S. employers must properly complete Form I-9 for
each individual they hire for employment in the United States. See
I-9, Employment Eligibility Verification USCIS web page, https://www.uscis.gov/i-9 (last updated Apr 13, 2021).
\122\ As noted elsewhere in this preamble, the number of
applicants who face expiration of the up-to-180-day automatic-
extension each month is approximately 30,000. However, as some
applicants who are already past the 180-day automatic extension
period will receive final adjudication of their application each
month, the total number of those in the population past the 180-day
period is expected to increase by 14,500 each month rather than by
30,000.
---------------------------------------------------------------------------

Although USCIS has been diligently trying to reduce the
adjudication backlog and EAD processing times, USCIS is unable to
quickly return to its processing goals due to the volume of pending
cases, new filings that USCIS continues to receive, and time needed to
increase staffing needs to meet existing demands. As of December 31,
2021, USCIS had approximately 520,000 pending EAD renewal requests in
automatic extension-eligible categories and continues to receive
approximately 55,000 additional Form I-765 applications in automatic
extension-eligible categories per month. These additional renewal
applications are adding to the current backlog, given that USCIS
currently completes approximately 33,000-34,000 such requests per
month. Further, as of November 6, 2021, 905 out of 8,721 (or, 10% of)
officer positions allocated to the Field Office Directorate (FOD) and
the Service Center Operations Directorate (SCOPS) were vacant and USCIS
estimates it may take at least until the end of CY 2022 for USCIS to
fill such vacancies.\123\
---------------------------------------------------------------------------

\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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

\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).
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

\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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\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\
---------------------------------------------------------------------------

\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.
---------------------------------------------------------------------------

\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.

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

[[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\
---------------------------------------------------------------------------

\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\
---------------------------------------------------------------------------

\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).
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

\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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\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.'').
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

\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).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\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).
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

\199\ See 5 U.S.C 804(2).
\200\ See 5 U.S.C. 808(2).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\201\ See 2 U.S.C. 1532(a).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\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).
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

\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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

\205\ 40 CFR 1507.3(e)(2)(ii) and 1501.4.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

\206\ See Appendix A, Table 1.
\207\ See Instruction Manual section V.B(2)(a) through (c).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\208\ See 5 U.S.C. 601 note.
\209\ Public Law 105-277, 112 Stat. 2681 (1998).
---------------------------------------------------------------------------

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