[Federal Register Volume 91, Number 108 (Friday, June 5, 2026)]
[Proposed Rules]
[Pages 34352-34478]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-11285]
[[Page 34351]]
Vol. 91
Friday,
No. 108
June 5, 2026
Part II
Department of Homeland Security
-----------------------------------------------------------------------
8 CFR Parts 106, 241, and 274a
Clarification of Discretionary Employment Authorization for Certain
Aliens; Proposed Rule
Federal Register / Vol. 91 , No. 108 / Friday, June 5, 2026 /
Proposed Rules
[[Page 34352]]
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 106, 241, and 274a
[CIS No. 2805-25; DHS Docket No. USCIS-2026-0067]
RIN 1615-AC98
Clarification of Discretionary Employment Authorization for
Certain Aliens
AGENCY: U.S. Citizenship and Immigration Services, DHS.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Department of Homeland Security proposes to limit and
clarify eligibility for discretionary employment authorization for
aliens paroled into the United States temporarily for urgent
humanitarian reasons or significant public benefit, who have been
granted deferred action, or against whom a final order of removal
exists and who are temporarily released from custody on an order of
supervision. DHS further proposes to specify that aliens applying for
employment authorization who admit to committing, have been arrested
for, or have been convicted of certain criminal acts do not warrant a
favorable exercise of discretion unless there are significant
countervailing public interests, which may include assisting law
enforcement activity in the United States.
DATES: Submission of Public Comments: Written comments must be
submitted on or before August 4, 2026. Comments on the information
collection described in the ``Paperwork Reduction Act'' section of this
proposed rule must be received on or before August 4, 2026. The
electronic Federal Docket Management System will accept comments prior
to midnight eastern time at the end of that day.
ADDRESSES: You may submit comments on the entirety of this proposed
rulemaking package, identified by DHS Docket No. USCIS-2026-0067
through the Federal eRulemaking Portal: http://www.regulations.gov. In
accordance with 5 U.S.C. 553(b)(4), the summary of this rule found
above may also be found at https://www.regulations.gov. Follow the
website instructions for submitting comments.
Comments must be submitted in English, or an English translation
must be provided. Comments that will provide the most assistance to
USCIS in implementing these changes will reference a specific portion
of the proposed rule, explain the reason for any recommended change,
and include data, information, or authority that support such
recommended change. Comments submitted in a manner other than the one
listed above, including emails or letters sent to DHS or USCIS
officials, will not be considered comments on the proposed rule and may
not receive a response from DHS. Please note that DHS and USCIS will
not accept any comments that are hand-delivered, couriered, or sent by
mail. In addition, USCIS cannot accept comments contained on any form
of digital media storage devices, such as CDs/DVDs and USB drives. If
you cannot submit your comment by using http://www.regulations.gov,
please contact the Regulatory Coordination Division, Office of Policy
and Strategy, U.S. Citizenship and Immigration Services, Department of
Homeland Security, by telephone at (240) 721-3000 for alternate
instructions.
FOR FURTHER INFORMATION CONTACT: Security and Public Safety Division,
Office of Policy and Strategy, U.S. Citizenship and Immigration
Services (USCIS), Department of Homeland Security, 5900 Capital Gateway
Drive, Camp Springs, MD 20746; telephone (240) 721-3000.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation
II. Executive Summary
A. Purpose of the Regulatory Action
B. Legal Authority
C. Summary of the Major Provisions of the Regulatory Action
D. Summary of Costs and Benefits
III. Background and Purpose
A. Prior and Related Rulemaking Efforts
1. Asylum EAD Reform
2. Biometrics Rule
B. Background
1. Detention, Release, and Repatriation of Aliens Ordered
Removed
2. Withholding of Removal Under the INA and Regulations
Implementing CAT and Deferral of Removal Under Regulations
Implementing CAT
3. Parole
4. Deferred Action
5. Employment Authorization
6. Biometric Submission
C. Purpose
1. Aliens With Final Orders of Removal
2. Aliens Who Have Received a Grant of Deferral of Removal Under
the Regulations Implementing CAT
3. Aliens Paroled Into the United States
4. Aliens Granted Deferred Action
IV. Discussion of Proposed Rule
A. Discretionary Employment Authorization Generally
1. Biometrics Submission and Criminal History
2. Filing Fees
3. E-Verify
4. Economic Necessity
B. Discretionary Employment Authorization for Aliens on OSUP
C. Aliens Granted Deferral of Removal Under the Regulations
Implementing CAT
D. Discretionary Employment Authorization for Aliens Paroled
Into the United States
E. Discretionary Employment Authorization for Aliens Granted
Deferred Action
F. Automatic Termination of Employment Authorization
G. Technical Edits and Edits for Clarity
H. Reliance Interests of Certain Aliens With Current Employment
Authorization
I. Description of Any Significant Alternatives to the Proposed
Rule Which Accomplish the Stated Objectives
J. Severability
V. Statutory and Regulatory Requirements
A. Executive Orders 12866 (Regulatory Planning and Review),
13563 (Improving Regulation and Regulatory Review), and 14192
(Unleashing Prosperity Through Deregulation)
1. Summary
2. Background and Purpose of the Proposed Rule
3. Population
4. Monetized Impact Analysis
5. Costs to Employers
6. Biometrics Costs to All Other Aliens Who Apply for Employment
Authorization
7. Potential Costs to the Federal Government
8. Benefits
9. Labor Market Overview
B. Regulatory Flexibility Act
C. Unfunded Mandates Reform Act of 1995
D. Small Business Regulatory Enforcement Fairness Act of 1996
(Congressional Review Act)
E. Executive Order 13132 (Federalism)
F. Executive Order 12988 (Civil Justice Reform)
G. Family Assessment
H. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
I. National Environmental Policy Act
J. Paperwork Reduction Act
K. Executive Order 12630 (Governmental Actions and Interference
with Constitutionally Protected Property Rights)
Table of Abbreviations
AEDPA Anti-Terrorism and Effective Death Penalty Act
ASC Application Support Center
BIA Board of Immigration Appeals
BLS Bureau of Labor Statistics
CAP Center for American Progress
CAT Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment
CBP U.S. Customs and Border Protection
CEQ Council of Environmental Quality
CFR Code of Federal Regulations
CPI-U Consumer Price Index for All Urban Consumers
DACA Deferred Action for Childhood Arrivals
DHS U.S. Department of Homeland Security
DOJ U.S. Department of Justice
[[Page 34353]]
DOL U.S. Department of Labor
DOS U.S. Department of State
EAD Employment Authorization Document
E.O. Executive Order
EOIR Executive Office for Immigration Review
E-Verify Employment Eligibility Verification System
FARRA Foreign Affairs Reform and Restructuring Act of 1998
FBI Federal Bureau of Investigation
FR Federal Register
FY Fiscal Year
GSA General Services Administration
HR Human Resources
H.R. 1 The One Big Beautiful Bill Act, Public Law 119-21, 139 Stat.
72.
HSA Homeland Security Act of 2002
HHS U.S. Department of Health and Human Services
ICE U.S. Immigration and Customs Enforcement
IIRIRA Illegal Immigration Reform and Immigrant Responsibility Act
of 1996
IJ Immigration Judge
INA Immigration and Nationality Act
INS Immigration and Naturalization Service
IRFA Initial Regulatory Flexibility Analysis
IRS Internal Revenue Service
LPR Lawful Permanent Resident
MOU Memorandum of Understanding
NEPA National Environmental Policy Act
NGO Non-governmental Organization
NPRM Notice of Proposed Rulemaking
OI Operating Instructions
OMB Office of Management and Budget
OSUP Orders of supervision
PRA Paperwork Reduction Act
Pub. L. Public Law
RFA Regulatory Flexibility Analysis
RIA Regulatory Impact Analysis
SBREFA Small Business Regulatory Enforcement Fairness Act of 1996
Secretary Secretary of Homeland Security
SSA Social Security Administration
TPS Temporary Protected Status
UMRA Unfunded Mandates Reform Act of 1995
U.N. United Nations
U.S.C. United States Code
USCIS U.S. Citizenship and Immigration Services
I. Public Participation
The Department of Homeland Security (DHS) invites all interested
parties to participate in this rulemaking by submitting written data,
views, comments and arguments on all aspects of this proposed rule. DHS
also invites comments that relate to the economic, environmental, or
federalism effects that might result from this proposed rule. Comments
must be submitted in English, or an English translation must be
provided. Comments that will provide the most assistance to U.S.
Citizenship and Immigration Services (USCIS) in implementing these
changes will reference a specific portion of the proposed rule, explain
the reason for any recommended change, and include data, information,
or authority that support such recommended change. Comments submitted
in a manner other than the one listed above, including emails or
letters sent to DHS or USCIS officials, will not be considered comments
on the proposed rule and may not receive a response from DHS.
Instructions: If you submit a comment, you must include the agency
name (U.S. Citizenship and Immigration Services) and the DHS Docket No.
USCIS-2026-0067 for this rulemaking. Regardless of the method used for
submitting comments or material, all submissions will be posted,
without change, to the Federal eRulemaking Portal at http://www.regulations.gov, and will include any personal information you
provide. Therefore, submitting this information makes it public. You
may wish to consider limiting the amount of personal information that
you provide in any voluntary public comment submission you make to DHS.
DHS may withhold information provided in comments from public viewing
that it determines may impact the privacy of an individual or is
offensive. For additional information, please read the Privacy and
Security Notice available at http://www.regulations.gov.
Docket: For access to the docket and to read background documents
or comments received, go to http://www.regulations.gov, referencing DHS
Docket No. USCIS-2026-0067. You may also sign up for email alerts on
the online docket to be notified when comments are posted or a final
rule is published.
II. Executive Summary
A. Purpose of the Regulatory Action
DHS proposes to limit and clarify eligibility for discretionary
employment authorization under 8 CFR 274a.12(c)(11)(``(c)(11)''), for
aliens paroled into the United States temporarily for urgent
humanitarian reasons or significant public benefit,\1\ and for
discretionary employment authorization under 8 CFR
274a.12(c)(14)(``(c)(14)''), for aliens granted deferred action.\2\ DHS
also proposes to eliminate, with one narrow exception, discretionary
employment authorization eligibility under 8 CFR
274a.12(c)(18)(``(c)(18)''), for aliens against whom a final order of
deportation or removal exists and who are temporarily released from
custody on an order of supervision.\3\ Additionally, DHS proposes to
add automatic termination conditions for employment authorization with
triggering events. The proposed rule will also require that aliens in
these categories establish their economic necessity for employment and
establish they warrant a favorable exercise of discretion. DHS is also
proposing to require aliens applying for renewal or subsequent requests
of employment authorization in these categories be employed by or
seeking employment with an employer who participates in E-Verify, the
electronic employment eligibility verification program administered by
USCIS. DHS also proposes to clarify that all aliens applying for
employment authorization under 8 CFR 274a.12(c) must submit biometrics,
that an alien's identity must be validated before issuing any
employment authorization, and that, generally, situations where aliens
have been arrested,\4\ indicted, or convicted of any criminal act, or
who have admitted to committing a violent or dangerous crime, or for
whom evidence exists that the alien is a member of a gang or terrorist
organization, do not warrant a favorable exercise of discretion, unless
there are significant countervailing public interests, which may
include the presence of the alien in the United States to assist law
enforcement activity in the United States.
---------------------------------------------------------------------------
\1\ Currently, except as provided in 8 CFR 274a.12(b)(37) and
(c)(34) and 8 CFR 212.19(h)(4), an alien paroled into the United
States temporarily for urgent humanitarian reasons or significant
public benefit pursuant to section 212(d)(5) of the Act is eligible
for employment authorization under 8 CFR 274a.12(c)(11) ((c)(11)
category).
\2\ Currently, except as provided in 8 CFR 274a.12(c)(33), an
alien who has been granted deferred action, an act of administrative
convenience to the government that gives some cases lower priority,
is eligible for employment authorization under 8 CFR 274a.12(c)(14)
((c)(14) category) if the alien establishes an economic necessity
for employment.
\3\ Currently, an alien against whom a final order of
deportation or removal exists and who is released on an order of
supervision under the authority contained in section 241(a)(3) of
the Act, and who meets other eligibility criteria may be granted
employment authorization under 8 CFR 274a.12(c)(18) ((c)(18)
category).
\4\ In this proposed rule, this means arrested or charged
regardless of the disposition.
---------------------------------------------------------------------------
Additionally, DHS is clarifying that aliens granted deferral of
removal based on regulations implementing the United States'
obligations under Article 3 of the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (CAT) are eligible
to apply for discretionary employment authorization in accordance with
8 CFR 274a.12(c)(18). Employment authorization will not be automatic
upon the grant of deferral of removal under CAT. Such aliens may apply
for employment authorization, but USCIS retains the authority and
discretion to determine their eligibility under 8 CFR
[[Page 34354]]
274a.12(c)(18) if the alien warrants a favorable exercise of
discretion.
These proposed changes and clarifications are responsive to
Executive Order (E.O.) 14159, ``Protecting the American People Against
Invasion'' \5\ to ensure the continued safety and security of the
American people and the integrity of our immigration system. DHS seeks
to ensure that any discretionary grant of employment authorization to
aliens is consistent with DHS's obligations under the INA to apprehend,
detain, and promptly remove from the United States any criminal aliens,
aliens who are a threat to national security or public safety, and
aliens who are inadmissible or deportable or otherwise ineligible for
relief under the INA. DHS also seeks to ensure that its rules are
aligned with the Administration's efforts to reduce illegal immigration
and the incentives for aliens to try to obtain immigration benefits
outside of the comprehensive scheme Congress has provided for aliens to
legally immigrate to the United States. Enforcement is essential to the
integrity of the immigration system. It protects U.S. national security
and ensures that only those who are legally qualified and lawfully in
the United States are allowed to avail themselves of any benefits
privileges under the INA.
---------------------------------------------------------------------------
\5\ 90 FR 8443 (Jan. 29, 2025).
---------------------------------------------------------------------------
Employment authorization issued under the (c)(18) category is for
aliens temporarily released from U.S. Immigration and Customs
Enforcement (ICE) custody on orders of supervision (OSUP), which allow
aliens to remain in the United States while awaiting deportation or
removal when they cannot be removed due to the refusal of all countries
designated by the alien or under section 241 of the Act, 8 U.S.C. 1231,
to receive the alien, or because the removal of the alien is otherwise
impracticable or contrary to the public interest. When adjudicating
employment authorization applications under 8 CFR 274a.12(c)(18), USCIS
has historically granted the benefit to any alien with a final order of
removal released on an order of supervision without conducting an
individualized assessment of whether the alien cannot be removed due to
the refusal of all countries designated by the alien or under section
241 of the Act to receive the alien or because removal is impracticable
or contrary to the public interest. Granting employment authorization
solely because the alien was released from ICE custody on an order of
supervision after an order of removal without conducting an
individualized assessment undermines the integrity of the immigration
system as it can incentivize aliens to remain in the United States
rather than complying with their removal orders, cooperating with ICE
in swiftly obtaining travel documents, and departing the United States.
Furthermore, by eliminating, with one limited exception,
discretionary employment authorization for an alien who has been
arrested for, charged with, indicted for, or convicted of any criminal
act, or who admits to committing a violent or dangerous crime, DHS
hopes to deter the commission of crime and disincentivize such
dangerous aliens from remaining in the United States. DHS anticipates
this will be especially effective for aliens who intend to reapply for
employment authorization. These aliens would not warrant a favorable
exercise of discretion for employment authorization unless DHS has
determined there are significant countervailing public interests, which
may include assisting law enforcement activity in the United States.
The rule clarifies the requirements for discretionary grants of
employment authorization under (c)(11) for aliens paroled into the
United States temporarily for urgent humanitarian reasons or
significant public benefit, under (c)(14) for those who have been
granted deferred action, or under (c)(18) for those against whom a
final order of deportation or removal exists and who are temporarily
released from custody on an order of supervision. The rule will require
these aliens to establish they warrant a favorable exercise of
discretion. The rule also requires that aliens under these three
categories establish economic necessity. In doing so, DHS promotes a
consistent policy in contrast to the status quo, which currently only
requires aliens who have received a grant of deferred action ((c)(14))
or those with final orders of removal ((c)(18)) to establish economic
necessity for employment authorization. This proposed change will also
ensure that only aliens with an economic need to work will be eligible
for discretionary employment authorization in these categories, as well
as minimize the potential risk of disadvantaging American workers.
Aliens who do not have an economic need for employment will not be
eligible for employment authorization and an employment authorization
document (EAD) in these categories. Where DHS previously did not
require all aliens under these categories to establish economic
necessity, it will now consistently require them to do so. DHS will
provide guidance on the documentation that may be used to establish
such necessity in form instructions and other sub-regulatory guidance.
In addition to all the factors discussed at length above, this
Administration and DHS recognize the importance of American workers as
well. DHS intends for this rule to significantly restrict employment
authorization that might incentivize aliens to remain in the United
States after receiving a final order of removal and to strengthen
protection for American workers.
Statutory provisions governing certain employment-based visas, such
as H-2B temporary nonagricultural workers, mandate that such alien
workers not displace qualified, available American workers who are
capable of performing such services or labor, and similarly that such
alien employment not adversely affect the wages and working conditions
of workers in the United States.\6\ DHS is in no way equating the
populations of aliens discussed in this proposed regulation with
temporary nonagricultural workers; rather, DHS merely notes the
mandatory consideration for American workers in certain visa programs.
However, DHS recognizes there is historical precedent to consider
American workers when DHS determines the availability and scope of
employment authorization for aliens.
---------------------------------------------------------------------------
\6\ See, e.g., INA sec. 101(a)(15)(H)(ii)(b), 8 U.S.C.
1101(a)(15)(H)(ii)(b); see also 8 CFR 214.2(h)(6)(i).
---------------------------------------------------------------------------
For example, in 1974, the former Immigration and Naturalization
Service (INS) Commissioner Leonard F. Chapman, Jr. announced a
significant change to the summer program policy for foreign
students.\7\ Under the new policy, foreign students seeking summer
employment had to apply and obtain permission from INS. In changing the
long-standing student employment policy, INS recognized the foreign
policy benefits for young aliens studying in the United States but
determined that the protection of job opportunities for Americans
should be the ultimate consideration.\8\ The following year, INS
General Counsel Sam Bernsen gave a presentation further detailing INS'
decision. He recognized that F-1 student work was not expressly banned
by statute but was concerned about ensuring that ``a United States
citizen or a United States lawful permanent resident will not be fired
from a campus job to provide employment for a nonimmigrant
[[Page 34355]]
student.'' \9\ Continuing, Bernsen stated the ``INS had to weigh the
adverse effect on foreign relations against the adverse effect on the
labor market.'' \10\ This ultimately meant students who wanted
employment had to apply to the INS and establish eligibility under the
prescribed rules. The Government Accountability Office (GAO) in a 1983
report estimated that there were approximately 154,580 F-1 students in
1974.\11\ If all 154,580 F-1 students displaced American workers, it
still falls far short of the current displacement risk based on more
recent employment authorization applications. In FY 2024, USCIS
received 33,024 (c)(18) Order of Supervision EAD initial and renewal
applications; 792,130 (c)(11) Parole EAD initial and renewal
applications; and 153,154 (c)(14) Deferred Action EAD initial and
renewal applications, for a total of 978,308 discretionary EAD
applications in the categories impacted by this proposed rule.\12\ If
the former INS was justified in terminating a form of work
authorization in order to prevent the possible displacement of more
than 150,000 American workers on an annual basis, it follows that DHS
cannot discount the potential impact on up to 978,308 American workers
annually when reviewing discretionary EAD categories.
---------------------------------------------------------------------------
\7\ See American Council for Nationalities Service Interpreter
Releases, Vol. 51, No. 16 ``Foreign Student Work Policy Changed''
(May 14, 1974).
\8\ Id.
\9\ See Bernsen, Sam, General Counsel, INS, DOJ, ``Leave to
Labor'' as published in American Counsel for Nationalities Service
Interpreter Releases, Vol. 52, No 35 (Sept. 2, 1975).
\10\ Id.
\11\ See GAO, Controls Over Foreign Students in U.S.
Postsecondary Institutions Are Still Ineffective, https://www.gao.gov/products/hrd-83-27 (Mar. 10, 1983). Department of State
(DOS) data on F-1 student visa issuances only goes back to 1987. See
https://travel.state.gov/content/dam/visas/Statistics/Non-Immigrant-Statistics/NIVClassIssuedDetailed/NIVClassIssued-DetailedFY1987-1991.pdf. Accordingly, official data for 1974 F-1 visa admissions is
not available from DOS.
\12\ For more information, please see Tables V.4, V.11, and
V.16.
---------------------------------------------------------------------------
Additionally, E.O. 14159 specifically provides that:
Enforcing our Nation's immigration laws is critically important
to the national security and public safety of the United States. The
American people deserve a Federal Government that puts their
interests first and a Federal Government that understands its sacred
obligation to prioritize the safety, security, and financial and
economic well-being of Americans.\13\
---------------------------------------------------------------------------
\13\ See E.O. 14159, Protecting the American People Against
Invasion, 90 FR 8443 (Jan. 29, 2025).
This rule will also require the following groups of aliens who are
seeking a renewal of employment authorization be employed by, or
seeking employment with, a U.S. employer who is a participant in good
standing in the E-Verify program: aliens who were (1) paroled into the
United States temporarily for urgent humanitarian reasons or
significant public benefit applying under (c)(11); (2) who have been
granted deferred action applying under (c)(14); or (3) against whom a
final order of deportation or removal exists and who are temporarily
released from custody on an order of supervision applying under
(c)(18). This requirement will protect American workers against
potential displacement and any disadvantages in the labor market and
ensure that U.S. employers who hire these aliens are complying with our
immigration laws and not employing unauthorized workers.
Finally, this rule is consistent with the Administration's broad
objective to protect and strengthen protections for American workers.
Generally, by limiting employment authorization to those aliens who
establish an economic necessity for employment and warrant a favorable
exercise of discretion by USCIS, this rule will remove barriers and
open pathways for American workers to participate in positions that may
otherwise be filled by aliens. Further, the rule limits incentives to
remain in the United States for those aliens with final orders of
removal, thereby expanding the labor pool for American workers.
Overall, this rule represents one piece of a broader initiative \14\
within the federal government to fulfill the President's domestic
policy goal of developing American workers for jobs of the future and a
revitalized economy. DHS proposes to apply changes made by this rule
only to initial and renewal employment authorization applications filed
on or after the effective date of the final rule.
---------------------------------------------------------------------------
\14\ For example, as noted elsewhere in this rule, USCIS is
engaged in concurrent rulemaking on other employment authorization
in the asylum context.
---------------------------------------------------------------------------
B. Legal Authority
The Secretary of Homeland Security's (Secretary) authority for the
regulatory amendments made in this proposed rule is found in various
provisions of the Immigration and Nationality Act (INA), 8 U.S.C. 1101
et seq., and the Homeland Security Act of 2002 (HSA), Public Law 107-
296, 116 Stat. 2135 (codified in part at 6 U.S.C. 101 et seq.). General
authority for issuing this proposed rule is found in section 103(a) of
the INA, 8 U.S.C. 1103(a), which authorizes the Secretary to administer
and enforce the immigration and naturalization laws and establish such
regulations as the Secretary deems necessary for carrying out such
authority, as well as section 122 of the HSA, 6 U.S.C. 112, which vests
all of the functions of DHS in the Secretary and authorizes the
Secretary to issue regulations.\15\ This includes the authority to
issue regulations authorizing categories of aliens to be employed in
the United States and to collect from or require the submission of
biometrics by aliens requesting immigration benefits, such as
employment authorization. Additional authority for this proposed rule
is found in:
---------------------------------------------------------------------------
\15\ Although several provisions of the INA discussed in this
proposed rule refer exclusively to the ``Attorney General,'' such
provisions are now to be read as referring to the Secretary by
operation of the HSA. See 6 U.S.C. 202(3), 251, 271(b), 542 note,
and 557; 8 U.S.C. 1103(a)(1) and (g), 1551 note; Nielsen v. Preap,
586 U.S. 392, 397 n.2 (2019).
---------------------------------------------------------------------------
Section 208, 8 U.S.C. 1158, which governs the
consideration of asylum applications and allows, inter alia, discretion
to grant asylum applicants employment authorization under specified
conditions.
Section 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A), which
authorizes the Secretary to prescribe conditions on parole.
Section 241 of the INA, 8 U.S.C. 1231, which governs the
detention, release, employment authorization, and removal of aliens
after they have received an administratively final order of removal;
Section 274A(h)(3)(B) of the INA, 8 U.S.C. 1324a(h)(3)(B),
which recognizes the Secretary's authority to extend employment
authorization to aliens in the United States; \16\
---------------------------------------------------------------------------
\16\ Courts have acknowledged that Congress delegated authority
to DHS to grant or extend employment authorization to certain
classes of aliens. See, e.g., Wash. All. of Tech. Workers v. DHS, 50
F.4th 164, 191-92 (D.C. Cir. 2022) (``What matters is that section
1324a(h)(3) expressly acknowledges that employment authorization
need not be specifically conferred by statute; it can also be
granted by regulation.''). DHS is exercising this discretionary
authority consistent with all applicable authorities, including the
referenced authorities in the HSA, and sections 103, 208,
212(d)(5)(A), 241, and 274A(h)(3) of the INA, 8 U.S.C. 1103, 1158,
1182(d)(5)(A), 1231, and 1324a(h)(3), as well as the Administrative
Procedure Act at 5 U.S.C. 553. See Loper Bright Enters. v. Raimondo,
603 U.S. 369, 395 (2024) (``In a case involving an agency, of
course, the statute's meaning may well be that the agency is
authorized to exercise a degree of discretion. Congress has often
enacted such statutes. For example, some statutes `expressly
delegate' to an agency the authority to give meaning to a particular
statutory term. Others empower an agency to prescribe rules to `fill
up the details' of a statutory scheme, or to regulate subject to the
limits imposed by a term or phrase that leaves agencies with
flexibility,' such as `appropriate' or `reasonable.' '') (citations
omitted).
---------------------------------------------------------------------------
Sections 401-405 of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA), Public Law 104-208, 110
Stat. 3009-
[[Page 34356]]
546, which established the authority for the creation and operation of
E-Verify;
Section 101(b)(1)(F) of the HSA, 6 U.S.C. 111(b)(1)(F),
which establishes as a primary mission of DHS the duty to ``ensure that
the overall economic security of the United States is not diminished by
efforts, activities, and programs aimed at securing the homeland'';
Section 451(a)(3) of the HSA, 6 U.S.C. 271(a)(3), which
confers authority on the USCIS Director to establish ``policies for
performing [immigration adjudication] functions'';
Section 103 of the INA, 8 U.S.C. 1103; section 287(b) of
the INA, 8 U.S.C. 1357(b); and sections 103.2(b)(9) and 103.16 of
chapter 8 of the CFR, which provides for and governs the collection,
submission, and use of biometrics by DHS; and
The One Big Beautiful Bill Act (H.R. 1), Public Law 119-
21, 139 Stat. 72 (codified in relevant part at 8 U.S.C. 1801-1815),
which imposes restrictions on validity periods of employment
authorization in relation to certain immigration benefits, as well as
certain fees.
C. Summary of the Major Provisions of the Regulatory Action
DHS is proposing to amend its regulations governing discretionary
employment authorization for certain aliens. The proposed rule would
include the following provisions to clarify and limit when certain
aliens are eligible for discretionary employment authorization and how
USCIS will weigh certain discretionary factors when adjudicating a
discretionary grant of employment authorization:
Employment Authorization for Aliens Granted Deferred
Action or Paroled into the United States. DHS proposes to revise
eligibility for discretionary employment authorization under 8 CFR
274a.12(c)(11) for aliens who have been paroled into the United States
based on urgent humanitarian reasons or significant public benefit and
under 8 CFR 274a.12(c)(14) for aliens who have been granted deferred
action by confirming such a grant requires the alien establish they
warrant a favorable exercise of discretion, by requiring aliens
applying for renewal of employment authorization be employed by or
seeking employment with a U.S. employer in good standing in E-Verify,
and by requiring aliens who have been paroled into the United States
based on urgent humanitarian reasons or significant public benefit to
establish an economic necessity for employment. The specific changes
proposed to 8 CFR 274a.12(c)(14) do not apply to employment
authorization based on a grant of DACA, which is authorized under 8 CFR
274a.12(c)(33), or to employment authorization based on a grant of
deferred action to an applicant for T nonimmigrant status, and eligible
family members, who have pending, bona fide applications, and who
warrant a favorable exercise of discretion, authorized under 8 CFR
274a.12(c)(40), and not 8 CFR 274a.12(c)(14); however, the proposed
changes described below relating to criminal aliens and biometrics,
which are generally applicable to all discretionary employment
authorization under 8 CFR 274a.12(c) unless specifically exempted, do
apply to employment authorization based on a grant of DACA or a bona
fide T application.
Employment Authorization for Aliens Temporarily Released
on OSUP. DHS proposes to limit eligibility for discretionary employment
authorization under 8 CFR 274a.12(c)(18) for aliens who have final
orders of removal and are temporarily released from custody on OSUP to
aliens for whom DHS has determined that removal is impracticable
because all countries from which DHS requested travel documents have
failed to issue such documents. DHS also proposes to require aliens
applying for renewal of employment authorization in this category to be
employed by or seeking employment with a U.S. employer in good standing
in E-Verify.
Bar discretionary employment authorization for criminal
aliens. DHS proposes that unless DHS has determined that there are
significant countervailing public interests, which may include the
presence of the alien in the United States to assist law enforcement
activity in the United States, it generally will not favorably exercise
its discretion to grant employment authorization, when:
[cir] An alien has been arrested for, charged with (without
disposition), indicted for, or convicted of, any criminal act; or
[cir] An alien admits to committing a violent or dangerous crime,
even if the alien has never been formally arrested, charged, indicted
or convicted; or
[cir] There is evidence of the alien's membership in a gang or
terrorist organization.
While an alien's successful participation in state or federal
programs, such as pretrial diversion programs, may not constitute a
conviction for the purposes of the INA, DHS generally will not
favorably exercise its discretion to grant employment authorization for
aliens who enter into agreements that impose some form of punishment,
penalty, or a restraint on liberty. This includes agreements or
programs where an alien's criminal record has been sealed or expunged.
In these cases, the alien's initial criminal arrest would be the
prevailing factor.
Require biometrics submission. DHS proposes to require
aliens seeking discretionary employment authorization to submit
biometrics. USCIS will submit an alien's biometrics to the Federal
Bureau of Investigation (FBI) for a criminal history check and use an
alien's biometrics to facilitate identity verification and production
of the EAD.
Validity periods. DHS intends to shorten the validity
period of the discretionary EADs (e.g., not more than one year)
impacted by the proposed rule and place the burden on the alien to
ensure ongoing eligibility for those applying for EADs under these
categories. On July 4, 2025, the President signed into law the One Big
Beautiful Bill Act (H.R. 1), Public Law 119-21, 139 Stat. 72. It placed
a limit on the validity of employment authorization for any alien
paroled into the United States to one year or the duration of the
alien's parole, whichever is shorter.\17\ H.R.1 also established
statutory validity periods for Temporary Protected Status (TPS)-based
employment authorization, stating TPS-related employment authorization
may only be automatically extended for up to 1 year or the duration of
TPS, whichever is shorter, for initial and renewal applications for
employment authorization pending or filed on or after July 22,
2025.\18\ Considering these changes, DHS is updating the validity
period for EADs issued for deferred action and OSUP-based employment
authorization categories to align with the others imposed in H.R. 1. In
addition to ensuring continuous eligibility and consistent treatment,
this
[[Page 34357]]
shorter validity period also supports ongoing management of aliens on
OSUP to ensure aliens are complying with the terms and conditions of
OSUP and have not reoffended or absconded. The burden should be on the
alien to reappear for biometrics submission with each application for
employment authorization to ensure USCIS has the most up-to-date and
accurate background check information. At their discretion, DHS and
USCIS may shorten additional discretionary EAD validity periods by
issuing sub-regulatory guidance in the future.
---------------------------------------------------------------------------
\17\ See Section 100003(b)(1) of Part I, Title X of Public Law
119-21 (July 4, 2025), 8 U.S.C. 1803(b)(1) (defining the validity
period for initial employment authorization of parolees to a period
of 1 year or for the duration of the alien's parole, whichever is
shorter.); see also Section 100010(a) of Part I, Title X of Public
Law 119-21 (July 4, 2025), 8 U.S.C. 1809(a) (defining the validity
period for renewal employment authorization of parolees to a period
of 1 year or for the duration of the alien's parole, whichever is
shorter).
\18\ See Section 100003(c)(1) of Part I, Title X of Public Law
119-21 (July 4, 2025), 8 U.S.C. 1803(c)(1) (defining the validity
period for initial employment authorization of aliens granted TPS to
a period of 1 year or for the duration of the TPS designation,
whichever is shorter.); see also Section 100012(a) of Part I, Title
X of Public Law 119-21 (July 4, 2025), 8 U.S.C. 1811(a) (defining
the validity period for renewal employment authorization of those
granted TPS to a period of 1 year or for the duration of the TPS
designation, whichever is shorter).
---------------------------------------------------------------------------
Automatic Termination of Employment Authorization. DHS is
proposing to expand the reasons for automatic termination under 8 CFR
274a.14(a)(1), to include two additional reasons:
[cir] When an alien has an administratively final order of removal
under any of the removal statutes (e.g., INA 217, 235, 238, 240); and
[cir] When the underlying basis for employment authorization is
terminated or denied. This can include DHS's termination of status or
denial of the application that was the basis of the employment
authorization (e.g., parole, deferred action).
Notice of the termination of the underlying status or benefit,
denial of a pending application, or having a final order of removal
will result in the automatic termination of any alien's employment
authorization granted under Sec. 274a.12(c).
D. Summary of Costs and Benefits
DHS estimates that this proposed rule would result in a reduction
in the number of aliens with granted deferred action, aliens granted
parole, and aliens with final orders of removal who are eligible for
employment authorization. This could result in lost earnings for aliens
who are no longer eligible for employment authorization, while also
ensuring and strengthening protections of American workers. The lost
earnings could result in a transfer of costs from the alien to their
support network, including family members, community groups, non-
profits or third-party organizations that provide for the alien, and
any dependents. In addition, DHS estimates that the proposed rule would
increase filing burdens for those aliens who remain eligible for
employment authorization, while ensuring economic necessity for
employment and permitting DHS to verify criminal history and
biometrically verify an alien's identity before issuing employment
authorization, and demonstrating to the satisfaction of USCIS that the
alien warrants a favorable exercise of discretion. U.S. businesses that
currently employ alien workers who would no longer be eligible to renew
their employment authorization under this proposed rule could incur new
costs due to employee turnover or compliance with the proposed E-Verify
requirement that would ensure aliens' authorization to work. Finally,
the proposed rule may result in a loss of tax revenue.
Under the proposed rule, DHS estimates and quantifies six types of
economic impacts, including: (1) potential lost earnings of alien
workers who may no longer be eligible for employment authorization; (2)
increased time burden for aliens to submit forms; (3) added time and
costs for aliens to submit biometrics; \19\ (4) labor turnover costs
that employers of alien workers could incur when EADs expire, are
revoked, or are not renewed; (5) costs to employers to enroll in and
maintain an E-Verify account as a participant in good standing to
retain alien workers applying for renewal EADs; and (6) potential
employment tax losses to the Federal government.
---------------------------------------------------------------------------
\19\ As discussed later in this preamble, the proposed changes
under 8 CFR 274a.13(a) will require all aliens applying for
employment authorization under Sec. 274a.12(c) to submit biometrics
at an ASC. DHS is concurrently proposing to amend its regulations
concerning the submissions and use of biometrics by an NPRM. The
overlapping policy objectives between the biometrics rule and this
proposed rule were considered when developing the populations and
costs associated with submitting biometrics under this proposed
rule. As such, this rule will only consider the impacts of
biometrics submission for those aliens that apply for employment
authorization under Sec. 274a.12(c).
---------------------------------------------------------------------------
DHS estimates that some aliens would be ineligible for
discretionary EADs due to the proposed rule. However, DHS cannot
estimate this population with precision because of data constraints
and, therefore, relies on a range with an upper and lower bound. The
estimated 10-year undiscounted, direct costs of this proposed rule
would range from about $9.1 billion to $27.9 billion (Table V.36),
which includes costs associated with biometrics and added time burdens
for relevant filing forms as well as estimated costs should employers
not be able to find replacement labor for category (c)(11), (c)(14),
and (c)(18) aliens who would become ineligible for employment
authorization under this rule. The estimated 10-year costs of the
proposed rule annualized at a 3 percent discount rate would range from
$920.5 million to $2.8 billion, and at a 7 percent discount rate would
range from $937.1 million to $2.9 billion. DHS estimates $2.9 billion
(10-year undiscounted) as the maximum transfer of employment taxes
(namely Medicare and Social Security) from employers and employees to
the Federal Government ($298.2 million annualized at 3 percent and
$304.6 million annualized at 7 percent).
The potential benefits of the proposed rule would be qualitative.
First, U.S. citizen or lawful permanent resident workers on the whole
would be more likely to obtain jobs currently held by category (c)(11),
(c)(14), and (c)(18) alien workers since the proposed rule would reduce
employment authorization eligibility for these populations of aliens.
Second, the proposed rule may reduce the incentive for (c)(18) aliens
to remain in the United States after receiving a final order of
removal, which could reduce the amount of government resources expended
on enforcing final orders of removal for such aliens as well as
monitoring and tracking aliens temporarily released on OSUP. According
to a May 2025 DHS announcement,\20\ the average cost to arrest, detain,
and remove an illegal alien is $17,121.\21\
---------------------------------------------------------------------------
\20\ ``DHS Announces Historic Travel Assistance and Stipend for
Voluntary Self-Deportation'' (release date May 5, 2025), https://www.dhs.gov/news/2025/05/05/dhs-announces-historic-travel-assistance-and-stipend-voluntary-self-deportation, (last viewed Nov.
26, 2025).
\21\ It is important to note that costs can vary significantly
based on individual circumstances, such as the method of removal,
the alien's location, detention costs, transportation expenses,
legal proceedings, and other logistical considerations.
---------------------------------------------------------------------------
Additional unquantifiable benefits also include enabling DHS to
determine an economic necessity for employment, biometrically verifying
an alien's identity before issuing any employment authorization under
Sec. 274a.12(c), vetting an alien's biometrics against government
databases for criminal activity, and ensuring that aliens who renew
their employment authorization have their employment authorization
verified by their employer, thereby increasing the integrity of the
immigration system.
Table II.1 shows the summary of impacts of the proposed regulatory
changes and the associated estimated costs and benefits.\22\
---------------------------------------------------------------------------
\22\ For a complete summary of regulatory changes and additional
guidance in this proposed rule, please see Section IV, ``Discussion
of Proposed Rule.''
---------------------------------------------------------------------------
BILLING CODE 9111-97-P
[[Page 34358]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.000
[[Page 34359]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.001
[[Page 34360]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.002
[[Page 34361]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.003
[[Page 34362]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.004
[[Page 34363]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.005
[[Page 34364]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.006
The impacts \23\ of reducing the number of aliens with final orders
of removal, aliens granted deferred action, and aliens granted parole
who are eligible for employment authorization include both potential
distributional impacts (transfers) and costs. USCIS uses the lost
compensation to aliens who are no longer eligible for employment
authorization as a measure of the impact of this change--either as
distributional impacts (transfers) from these aliens to others or as a
proxy for businesses' cost for lost productivity. If all companies can
easily find reasonable labor substitutes for the positions the aliens
would have otherwise filled, DHS estimates a maximum of $2.8 billion
(annualized at a 3 percent discount rate) would be transferred from
these workers to others in the labor force (or induced back into the
labor force) or $2.9 billion (annualized at a 7 percent discount rate)
(Table II.2(A)).\24\ Under this scenario, there would be no Federal
employment tax losses.\25\ Conversely, if companies are unable to find
reasonable labor substitutes for the positions the aliens would have
filled, then a maximum of $2.8 billion (annualized at a 3 percent
discount rate) or $2.9 billion (annualized at a 7 percent discount
rate) is the estimated monetized cost in lost productivity, and $0 is
the estimated monetized transfers from these aliens to other workers.
In addition, under this scenario where jobs would go unfilled, there
would be a loss of employment taxes to the Federal Government. USCIS
estimates $298.2 million (annualized at a 3 percent discount rate) or
$304.6 million (annualized at a 7 percent discount rate) as the maximum
reduction in transfers of employment taxes from companies and employees
to the Federal Government.
---------------------------------------------------------------------------
\23\ All other categories include: (c)(1)-(10), (c)(12),
(c)(16), (c)(17), (c)(19)-(22), (c)(24)-(26), (c)(33)-(36), and
(c)(40).
\24\ We note that DHS does not know the portion of overall
impacts of this rule that are transfers or costs and assume that if
companies can find replacement labor for the positions the (c)(11),
(c)(14), or (c)(18) alien worker would have filled, removing
employment authorization from these aliens would result in primarily
distributional effects in the form of transfers from aliens to
others that are currently in the U.S. labor force (or workers
induced to return to the labor market). Please see Section V.A.5.
``Costs to Employers'' for more information.
\25\ This scenario assumes that all the labor substitutes for
the positions the aliens would have filled were previously
unemployed. If a labor substitute was previously employed, then
there could be a potential tax loss stemming from the position that
was vacated.
---------------------------------------------------------------------------
DHS believes the two scenarios described above represent the
uncertainty in how employers will be able to respond given labor market
conditions. DHS estimated endpoints for the range of monetized impacts
resulting from the provisions that affect employment eligibility for
aliens with final orders of removal, aliens granted deferred action,
and aliens granted parole. Effects of this rulemaking would depend in
part on the interaction of a
[[Page 34365]]
number of complex variables that are constantly in flux, including
national, state, and local labor market conditions, economic and
business factors, the type of occupations and skills involved, and the
availability of similarly skilled workers. DHS acknowledges there is
extensive literature on the impacts of immigration on labor
markets.\26\ DHS welcomes public comment on the estimates presented in
these scenarios and on the validity of the assumptions on affected jobs
being backfilled.
---------------------------------------------------------------------------
\26\ See Edo, A. (2019). The Impact of Immigration on the Labor
Market. Journal of Economic Surveys, Vol. 33(3), pp. 922-948.
---------------------------------------------------------------------------
There are other costs of the rule, including E-Verify, biometrics,
labor turnover, and additional form burdens. These other costs exist
under both scenarios described above, and thus $4.2 million is the
minimum cost of the rule (annualized at a 3 percent discount rate) or
$4.4 million (annualized at a 7 percent discount rate).
The range of impacts described by the scenarios above, plus the
consideration of the other costs, are summarized in Table II.2. The
primary estimate shown in Table II.2 is the median point between the
minimum estimate and the maximum estimate for each scenario.\27\
---------------------------------------------------------------------------
\27\ Example calculations at 7 percent: The median for
compensation (transfer) of $0 and $2,877,152,531 = $1,443,576,266.
The median for taxes (transfer) of $0 and $304,644,371 =
$152,322,185. The median for biometrics (cost) of $3,440,598 and
$8,425,002 = $5,932,800. The median for forms (cost) of $934,778 and
$2,622,217 = $1,778,497. The median for lost productivity (cost) of
$0 and $2,887,152,531 = $1,443,576,266. The median for total costs
of $4,375,376 and $2,898,199,750 = $1,451,287,563.
---------------------------------------------------------------------------
[[Page 34366]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.007
[[Page 34367]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.008
In addition, Table II.3 presents the prepared accounting statement,
as required by OMB Circular A-4, showing the costs associated with this
proposed regulation.\28\ Note that under costs, the primary estimates
provided in the accounting statement are the calculated midpoint based
on the minimum cost from the scenario that all aliens are replaced with
other workers and the maximum cost from the scenario that no aliens are
replaced with other workers (scenarios presented in Tables II.2(A) and
(B)).
---------------------------------------------------------------------------
\28\ OMB, ``Circular A-4'' (Sept. 17, 2003).
---------------------------------------------------------------------------
[[Page 34368]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.009
[[Page 34369]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.010
BILLING CODE 9111-97-C
III. Background and Purpose
A. Prior and Related Rulemaking Efforts
On November 19, 2020, DHS published a notice of proposed rulemaking
(NPRM) in the Federal Register, Employment Authorization for Certain
Classes of Aliens with Final Orders of Removal (OSUP NPRM). 85 FR
74196. It proposed to eliminate eligibility for discretionary
employment authorization for aliens who have final orders of removal
and are temporarily released from custody on an order of supervision
with one narrow exception. In general, the basis for the OSUP NPRM
stemmed from two executive orders issued by President Trump, E.O. 13768
(Enhancing Public Safety in the Interior of the United States) and E.O.
13788 (Buy American and Hire American).\29\
---------------------------------------------------------------------------
\29\ E.O. 13768, Enhancing Public Safety in the Interior of the
United States, 82 FR 8799 (Jan. 30, 2017); E.O. 13788, Buy American
and Hire American, 82 FR 18837 (Apr. 21, 2017).
---------------------------------------------------------------------------
USCIS provided a 30-day comment period to receive public comments
on the proposed rule, which ended December 21, 2020. DHS received a
total of 306 comments on the OSUP NPRM.
On January 20, 2021, President Biden issued E.O. 13993 (Revision of
Civil Immigration Enforcement Policies and Priorities), which revoked
E.O. 13768.\30\ Then, on January 25, 2021, President Biden issued E.O.
14005 (Ensuring the Future Is Made in All of America by All of
America's Workers), which revoked E.O. 13788.\31\ E.O.s 13993 and 14005
directed agencies to review, revise, or rescind any agency actions or
guidance inconsistent with the executive orders.
---------------------------------------------------------------------------
\30\ E.O. 13993, Revision of Civil Immigration Enforcement
Policies and Priorities, 86 FR 7051 (Jan. 25, 2021).
\31\ E.O. 14005, Ensuring the Future Is Made in All of America
by All of America's Workers, 86 FR 7475 (Jan. 28, 2021).
---------------------------------------------------------------------------
After reviewing the OSUP NPRM and the public comments in light of
E.O.s 13993 and 14005, DHS withdrew the OSUP NPRM on May 10, 2021.
Employment Authorization for Certain Classes of Aliens with Final
Orders of Removal; Withdrawal, 86 FR 24751. Therefore, an OSUP final
rule was never published. Many of the proposed provisions in this rule
closely follow
[[Page 34370]]
what was originally proposed in the OSUP NPRM. However, as no final
rule was published, DHS will address the previously proposed provisions
anew.
Concurrent with this rule, DHS is engaging in multiple rulemaking
actions that are in various stages of development. DHS has considered
and analyzed each of these other rules for peripheral, overlapping, or
interrelated effects on this rule and has incorporated their effects,
if any, into the supporting documentation, policies, and regulatory
text for this proposed rule.
1. Asylum EAD Reform
DHS recently published a proposed rule (``Asylum EAD Reform Rule'')
addressing employment authorization for aliens with pending
applications for asylum under 8 CFR 274a.12(c)(8) and 8 CFR 208.7
(colloquially referred to as a ``(c)(8) EAD'').
In the proposed Asylum EAD Reform rule, 91 FR 8616, DHS seeks to
amend 8 CFR 274a.13(a)(1) so that USCIS would have discretion to grant
applications for employment authorization filed by aliens applying for
asylum pursuant to 8 CFR 274a.12(c)(8) in keeping with its
discretionary statutory authority under section 208(d)(2) of the INA, 8
U.S.C. 1158(d)(2). As asylum is a discretionary benefit, it follows
that USCIS should similarly grant work authorization associated with a
pending asylum application as a matter of discretion. DHS cannot
continue to provide employment authorization to asylum applicants with
virtually no eligibility criteria and nearly limitless renewal
opportunities to a population of aliens where many of the claims for
relief are ultimately unsuccessful. In fiscal years 2023, 2024, and
2025 (year to date), in roughly 18,000 of the approximately 33,500
asylum cases completed by USCIS, over 50% resulted in a denial or
referral to Immigration Court.\32\ Judges in the Department of Justice,
Executive Office for Immigration Review's (EOIR) immigration courts
similarly granted about 50% of the asylum applications adjudicated on
the merits in fiscal years 2023 and 2024 and only about 25% in fiscal
year 2025 (through the third quarter).\33\
---------------------------------------------------------------------------
\32\ See, e.g., Office of Homeland Security Statistics, DHS,
``Asylees: 2023'' (Oct. 2024), https://ohss.dhs.gov/sites/default/files/2024-10/2024_1002_ohss_asylees_fy2023.pdf. Note: This figure
does not include cases associated with the Operation Allies Welcome
(OAW) program. This program, established by the previous
administration, resulted in disproportionately high grant rates for
OAW cases. These cases were excluded to give a more accurate
overview of the previous years' figures, as the OAW cases' priority
and volume would have impacted the average if they had been
included.
\33\ See EOIR, Asylum Decisions (July 31, 2025) (comparing
asylum grants versus the total of asylum grants and denials),
https://www.justice.gov/eoir/media/1344851/dl?inline.
---------------------------------------------------------------------------
The purpose of the proposed Asylum EAD Reform Rule is to reform,
improve, and streamline the asylum EAD process, so that those with bona
fide asylum claims can be prioritized and extended protection. Thus,
that proposed rule would impact the process for issuance of EADs for
aliens with a pending asylum application under 8 CFR 274a.12(c)(8), the
processing timeframe for (c)(8) EAD applications, the waiting period to
apply for a (c)(8) EAD, the time in which a (c)(8) EAD is adjudicated,
(c)(8) EAD validity period, and eligibility requirements for (c)(8)
EADs. The Asylum EAD Reform Rule would require changes to existing
regulatory text and the creation of new regulatory text.
DHS considered the possible combined effects of the Asylum EAD
Reform Rule and this proposed rule. Both this rule and the Asylum EAD
Reform Rule emphasize the discretionary nature of employment
authorization for the pertinent populations and the proposed
discretionary factors and clarified eligibility requirements included
in this rule and the Asylum EAD Reform Rule generally overlap. For
example, both the Discretionary EAD Rule and Asylum EAD Reform Rule
propose to exclude certain criminal aliens from employment
authorization eligibility. In the Asylum EAD Reform Rule, DHS is
proposing to exclude (c)(8) EAD eligibility for any alien who has been
convicted of an aggravated felony as described in section 101(a)(43) of
the INA, 8 U.S.C. 1101(a)(43), any alien who has been convicted of a
particularly serious crime, any alien for whom there are serious
reasons to believe that he or she committed a serious non-political
crime outside the United States, and any alien who fails to establish
that he or she is not subject to a mandatory denial of asylum due to
any regulatory criminal grounds under 8 CFR 208.13(c).
Although this proposed rule intersects with the Asylum EAD Reform
Rule, DHS is using current regulatory text as the basis for changes in
both rules. This is because any changes proposed by the Asylum EAD
Reform Rule at this point in the process are just that--proposed.
Therefore, DHS acknowledges that the regulatory text for either final
rule may differ from the exact provisions in the relevant proposed rule
in order to align the text with any updated regulations as of the time
of publication. For example, the Discretionary EAD Rule amends 8 CFR
274a.12(c) to outline the EAD categories that are currently non-
discretionary, which includes asylum EADs under (c)(8). However, this
provision may require edits at the final rule stage, to accurately
align both the Discretionary EAD and Asylum EAD rules. DHS notes that
while the proposed Discretionary EAD Rule includes changes that relate
to all employment authorization under 8 CFR 274a.12(c), the Asylum EAD
Reform Rule will address all (c)(8)-specific proposed changes.
2. Biometrics Rule
DHS is also concurrently proposing to amend its regulations
concerning the use and submission of biometrics in the administration
and enforcement of immigration and naturalization laws and the
adjudication of any immigration application, petition, or benefit or
any other related request or collection of information (``Biometrics
Rule'').\34\ The Biometrics Rule proposes to require the submission of
biometrics by any individual, regardless of age, filing or associated
\35\ with an immigration benefit request or other request or collection
of information, unless exempted. This incorporates any applicant,
petitioner, sponsor, supporter, derivative, dependent, or beneficiary,
including U.S. citizens, U.S. nationals, and lawful permanent
residents. It will define ``biometrics'' and expand modalities
authorized for collection by DHS. Further, the proposed rule will
codify USCIS's ability to reuse biometrics rather than requiring
applicants to submit new biometrics in all cases but permit the reuse
of biometrics only after completion of a biometric-based identity
verification. Finally, it will expand biometrics collection authority
upon alien arrest; establish an ``extraordinary circumstances''
standard to excuse a failure to appear at a biometric services
appointment; modify how VAWA self-petitioners and T nonimmigrant status
applicants demonstrate good moral
[[Page 34371]]
character; and clarify the purposes for which DHS can collect.
---------------------------------------------------------------------------
\34\ Collection and Use of Biometrics by U.S. Citizenship and
Immigration Services, 90 FR49062 (Nov. 3, 2025).
\35\ By ``associated,'' DHS means a person with substantial
involvement or participation in the immigration benefit request or
other request or collection of information, such as a named
derivative, beneficiary, petitioner's signatory, sponsor, or co-
applicant. The terms ``file,'' ``submit,'' and ``associated with''
or variations thereof, as used throughout this rule, do not relate
to attorneys and accredited representatives, although attorneys and
accredited representatives may file or submit a request on behalf of
a client.
---------------------------------------------------------------------------
The purpose of the Biometrics Rule is to standardize the
Department's collection of biometrics and provide notice to those
populations that will be subject to biometrics requirements. As
explained more in-depth in the Biometrics Rule, using biometrics for
identity verification \36\ and case management will assist DHS's
efforts to combat trafficking, confirm the results of biographical
criminal history checks, and deter fraud.
---------------------------------------------------------------------------
\36\ See DHS, Biometrics, https://www.dhs.gov/biometrics (last
updated Jan. 24, 2025).
---------------------------------------------------------------------------
DHS welcomes comments on the combined impact of this proposed rule
with any intervening legislation, related rulemakings, and policy
changes that could either overlap or coincide with this rulemaking.
B. Background
1. Detention, Release, and Repatriation of Aliens Ordered Removed
Section 241 of the INA, 8 U.S.C. 1231, governs the detention,
release, and removal of aliens subject to final orders of removal. DHS
generally has 90 days after the date a removal order becomes
administratively final to remove the alien from the United States.\37\
This 90-day removal period can be extended if the alien fails or
refuses to make timely application in good faith for travel or other
documents necessary for the alien's departure or conspires or acts to
prevent removal.\38\ Under section 241(a)(2) of the INA, 8 U.S.C.
1231(a)(2), DHS ``shall detain'' an alien during the removal period and
is specifically prohibited from releasing an alien during the removal
period who has been found inadmissible under sections 212(a)(2) or
(a)(3)(B) of the INA, 8 U.S.C. 1182(a)(2) or (a)(3)(B), or deportable
under sections 237(a)(2) or (a)(4)(B) of the INA, 8 U.S.C. 1227(a)(2)
or (a)(4)(B) (criminal, security-related, and terrorism grounds).
---------------------------------------------------------------------------
\37\ INA sec. 241(a)(1)(A) and (B)(i), 8 U.S.C. 1231(a)(1)(A)
and (B)(i).
\38\ INA sec. 241(a)(1)(C), 8 U.S.C. 1231(a)(1)(C).
---------------------------------------------------------------------------
In certain instances, DHS is not able to remove aliens within the
90-day removal period. In such cases, DHS must comply with the U.S.
Supreme Court's decision in Zadvydas v. Davis.\39\ In Zadvydas, the
Supreme Court held that an alien with a final order of removal cannot
be kept in detention (unless special circumstances exist) \40\ once it
has been determined that there is not a ``significant likelihood of
removal in the reasonably foreseeable future.'' \41\ The Court
established 6 months as the ``presumptively reasonable period of
detention.'' \42\ After the 6-month period, once the alien provides
good reason to believe there is no significant likelihood of removal in
the reasonably foreseeable future, the Government must respond with
sufficient evidence to rebut that showing.\43\ In the event DHS
determines that removal is not likely to occur in the reasonably
foreseeable future, the alien must generally be temporarily released on
an order of supervision.\44\ During this period of release, the alien
is required to continue to make efforts (or assist in efforts) towards
his or her removal while DHS continues to pursue the alien's
removal.\45\
---------------------------------------------------------------------------
\39\ 533 U.S. 678 (2001).
\40\ Under 8 CFR 241.14, aliens with ``special circumstances''
are those: (1) that have a highly contagious disease that threatens
public safety; (2) whose release would have serious adverse foreign
policy implications; (3) who present a significant threat to
national security or significant risk of terrorism; or (4) who are
especially dangerous.
\41\ Zadvydas, 533 U.S. at 701.
\42\ Id.
\43\ Id.; see also 8 CFR 241.13(d).
\44\ INA 241(a)(3), 8 U.S.C. 1231(a)(3); see also 8 CFR 241.5.
Aliens subject to an expedited removal order, however, are not
subject to release on an order of supervision. INA sec.
235(b)(1)(B)(iii)(IV), 8 U.S.C. 1225(b)(1)(B)(iii)(IV) (an alien
subject to expedited removal under section 235 ``shall be detained
pending a final determination of credible fear of persecution and,
if found not to have such a fear, until removed'').
\45\ See 8 CFR 241.5(a).
---------------------------------------------------------------------------
If an alien is temporarily released on an order of supervision, the
order of supervision will contain conditions for release, including
requiring the alien to appear periodically before an immigration
officer and comply with the conditions prescribed in the order of
supervision.\46\ If an alien fails to comply with the conditions of
release as specified in the order of supervision, DHS can take the
alien back into custody and detain the alien until he or she is
removed. Aliens who willfully fail to comply with an order of
supervision can also be criminally prosecuted under section 243(b) of
the INA, 8 U.S.C. 1253(b).
---------------------------------------------------------------------------
\46\ INA sec. 241(a)(3), 8 U.S.C 1231(a)(3); 8 CFR 241.5(a). DHS
may also require an alien temporarily released on an order of
supervision to post a bond of a sufficient amount to ensure that the
alien complies with the terms for release, including surrendering
him- or herself to DHS custody for removal. 8 CFR 241.5(b).
---------------------------------------------------------------------------
Once an alien has been issued a final order of removal, ICE is
responsible for effectuating the alien's removal from the United States
pursuant to section 241 of the INA, 8 U.S.C. 1231, and 8 CFR part 241.
Generally, a travel document must be obtained from a foreign government
that will allow the alien to depart the United States and be
repatriated either to the alien's country of birth, citizenship,
nationality, or last habitual residence or to an alternate country that
has agreed to accept the alien. Based on 2019 removal data, it takes
DHS an average of 187.19 days, roughly 6 months, to obtain travel
documents and remove an alien from the United States.\47\ As this
average has declined in recent years, the population of aliens that
will be released on OSUP will likely decrease.\48\
---------------------------------------------------------------------------
\47\ This is the most recent publicly available data.
Furthermore, even though the average time to obtain travel documents
across all countries was 187.19 days, the process for negotiating
with foreign governments to obtain travel documents is dynamic.
While there may be a period of inactivity by a particular foreign
government to cooperate with issuing travel documents for a specific
alien, a policy shift can also occur quickly and result in prompt
repatriation. See Office of Inspector General, ``ICE Faces Barriers
in Timely Repatriation of Detained Aliens'' (Mar. 11, 2019), https://www.oig.dhs.gov/sites/default/files/assets/2019-03/OIG-19-28-Mar19.pdf.
\48\ Per internal DHS data and analysis.
---------------------------------------------------------------------------
However, some countries refuse or unreasonably delay the issuance
of the necessary travel documents to aliens who have been issued a
final order of removal. Countries that unreasonably delay accepting the
repatriation of their citizens or nationals impede DHS's ability to
remove aliens in a timely manner and interfere with the United States'
sovereign interest in enforcing its immigration laws. Under section
243(d) of the INA, 8 U.S.C. 1253(d), the Secretary has the authority to
notify the Secretary of State that a specific country is refusing or
unreasonably delaying acceptance of its nationals. Upon such
notification from the Secretary, the Secretary of State must order
consular officers in that country to discontinue issuing immigrant
visas, nonimmigrant visas, or both to citizens and nationals of that
country.\49\ While DHS and the U.S. Department of State (DOS) work
through various diplomatic channels and avenues to get such countries
to comply, and most countries do comply, there are countries that
refuse to assist in the repatriation of their citizens and nationals,
and as a result, the United States has imposed visa sanctions under
section 243(d) of the INA, 8 U.S.C. 1253(d), to get such countries to
cooperate.\50\
---------------------------------------------------------------------------
\49\ See INA sec. 243(d), 8 U.S.C. 1253(d); see also Memorandum
of Understanding Between the Secretaries of State and Homeland
Security Concerning Implementation of Section 428 of the Homeland
Security Act of 2002, para. 3(c) (2003).
\50\ See, e.g., DHS, ``DHS Announces Implementation of Visa
Sanctions,'' July 10, 2018 (implementing visa restrictions on the
governments of Burma and Laos for denying or unreasonably delaying
the acceptance of their nationals who have been ordered removed from
the United States), https://www.dhs.gov/archive/news/2018/07/10/dhs-announces-implementation-visa-sanctions.
---------------------------------------------------------------------------
[[Page 34372]]
2. Withholding of Removal Under the INA and Regulations Implementing
CAT and Deferral of Removal Under Regulations Implementing CAT
Even if an alien is inadmissible or deportable and has a final
order of removal, DHS's authority to remove an alien in certain cases
may be further restricted by certain statutory and regulatory
provisions implementing U.S. treaty obligations concerning non-
refoulement (non-return). The United States is a party to the 1967
Protocol relating to the Status of Refugees (Protocol), which
incorporates, inter alia, Article 33 of the 1951 Convention relating to
the Status of Refugees. 198 U.N.T.S. 137. Article 33 specifically
provides that ``[n]o contracting state shall expel or return (refouler)
a refugee in any manner whatsoever to the frontier of territories where
his life or freedom would be threatened on account of his race,
religion, nationality, membership of a particular social group, or
political opinion.'' \51\ The United States is also a party to CAT.\52\
Article 3 of CAT requires that ``[n]o State Party shall expel, return
(`refouler') or extradite a person to another state where there are
substantial grounds for believing that he would be in danger of being
subjected to torture.'' \53\
---------------------------------------------------------------------------
\51\ Convention Relating to the Status of Refugees, Treaty
Series, vol. 198, p. 137, art. 33 (July 28, 1951).
\52\ Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, Treaty Series, vol. 1465 (Dec.
10, 1984).
\53\ Id.
---------------------------------------------------------------------------
Though neither of these treaties is self-executing, the United
States has implemented its non-refoulement obligations under these
treaties in statutes and regulations.\54\ With respect to Protocol,
Congress implemented the United States' non-refoulement obligations as
part of the Refugee Act of 1980, section 241(b)(3) of the INA, 8 U.S.C.
1231(b)(3). With respect to CAT, Congress directed the appropriate
agencies to publish regulations to implement the United States'
obligations under Article 3 of the CAT in the Foreign Affairs Reform
and Restructuring Act of 1998 (FARRA), Public Law 105-277, div. G.,
sec. 2442(b) (Oct. 21, 1998). The Department of Justice (DOJ) published
regulations in 1999 implementing FARRA sec. 2442. See 64 FR 8478 (Feb.
19, 1999). The regulations governing withholding of removal based on
section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), and withholding and
deferral of removal under CAT are now codified in principal part at 8
CFR 208.16 through 208.18 and 1208.16 through 1208.18.
---------------------------------------------------------------------------
\54\ See, e.g., Trinidad y Garcia v. Thomas, 683 F.3d 952, 955
(9th Cir. 2012); Pierre v. Gonzales, 502 F.3d 109, 119-20 (2d Cir.
2007); Matter of H-M-V-, 22 I&N Dec. 256, 259-60 (BIA 1998).
---------------------------------------------------------------------------
Aliens granted withholding of removal based on section 241(b)(3) of
the INA, 8 U.S.C. 1231(b)(3), and aliens granted withholding of removal
based on the regulations implementing CAT, 8 CFR 208.16(c) and
1208.16(c), are both subject to mandatory bars to withholding if the
aliens participated in Nazi persecution, participated in genocide,
committed an act of torture and extrajudicial killing, participated in
the persecution of others, have been convicted of a particularly
serious crime, have committed a serious nonpolitical crime outside the
United States prior to arrival, or are a danger to the security of the
United States.\55\ However, even if an alien is not eligible for
withholding under the provisions noted above because he or she is
subject to one of the mandatory bars to withholding, DHS still is not
permitted to remove an alien from the United States if an Immigration
Judge (IJ) or the Board of Immigration Appeals (BIA) has determined
that removal would result in the alien being removed to a country where
he or she would more likely than not be tortured. 8 CFR 208.17 and
1208.17. In such instances, the IJ or BIA defers removal to that
country.
---------------------------------------------------------------------------
\55\ The regulations at 8 CFR 208.16(d)(2) specifically provide
that an application for withholding of removal under the regulations
implementing CAT shall be denied if the alien falls within section
241(b)(3)(B) of the INA, 8 U.S.C. 1231(b)(3)(B).
---------------------------------------------------------------------------
Withholding of deportation or removal based on section 241(b)(3) of
the INA, 8 U.S.C. 1231(b)(3), or the regulations implementing U.S.
obligations under CAT Article 3 (``CAT withholding'') (if the alien is
not subject to a mandatory bar) and CAT deferral of removal are
mandatory and must be granted if the alien meets the burden of proof.
See 8 CFR 1208.16(b), (c)(4) and 1208.17(a). Once an alien has been
granted withholding or deferral of removal, DHS cannot remove the alien
to the country from which removal has been withheld or deferred unless
the alien's case is reopened and withholding is terminated under 8 CFR
208.24 or 1208.24, or deferral is terminated under 8 CFR 208.17 or
1208.17. In most instances, an alien granted withholding of removal or
deferral of removal under the regulations implementing CAT will be
released pursuant to an order of supervision, but such an order does
not alter or affect the nondiscretionary nature of the withholding or
deferral of removal grant, even if the alien subsequently violates the
conditions for release as specified in the order of supervision. Such
violations could result in a return of the alien to ICE custody but
will not result in the alien's actual removal from the United States to
the relevant country or countries in question unless the alien's case
is reopened, and withholding is terminated under 8 CFR 208.24 or
1208.24 or deferral of removal is terminated under 8 CFR 208.17 or
1208.17.
3. Parole
The INA confers upon the Secretary the narrow discretionary
authority to parole applicants for admission, regardless of
admissibility, into the United States ``temporarily under such
conditions as [DHS] may prescribe only on a case-by-case basis for
urgent humanitarian reasons or significant public benefit.'' \56\
Additionally, upon a finding by DHS that the purpose of the temporary,
discretionary parole has been served, the alien is required to depart
the United States ``or be returned to the custody from which he was
paroled and thereafter his case shall continue to be dealt with in the
same manner as that of any other applicant for admission to the United
States.'' \57\
---------------------------------------------------------------------------
\56\ INA sec. 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A); see also 8
CFR 212.5(a) and (c) through (e) (discretionary authority for
establishing conditions of parole and for terminating parole).
\57\ INA sec. 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A).
---------------------------------------------------------------------------
Since the late 19th century, the Government has used some form of
parole to allow inadmissible aliens to come into and temporarily remain
in the United States.\58\ Congress did not codify this parole authority
until 1952, with the enactment of the INA.\59\ Section 212(d)(5) of the
1952 INA authorized the Attorney General to parole an alien into the
United States for ``emergent reasons or for reasons deemed strictly in
the public interest.'' \60\ In a House Report accompanying the 1952
INA, Congress indicated that parole was meant for
---------------------------------------------------------------------------
\58\ See, e.g., Kaplan v. Tod, 267 U.S. 228, 230 (1925); see
also Nishimuru Ekiu v. United States, 142 U.S. 651, 661 (1892)
(recognizing that the immigration authorities could authorize an
alien to come ashore temporarily, without admission, while
admissibility was litigated, leaving the alien in the same position
as she was); Leng May Ma v. Barber, 357 U.S. 185, 188-90 (1958) (a
paroled alien is still deemed an alien seeking admission to the
United States).
\59\ Public Law 82-414, 66 Stat. 163 (June 27, 1952).
\60\ Id. at 66 Stat 188.
emergency cases, such as the case of an alien who requires immediate
medical attention before there has been an opportunity for an
immigration officer to inspect him, and in cases where it is
strictly in the public interest to have an inadmissible alien
present in the
[[Page 34373]]
United States, such as, for instance, a witness or for purposes of
prosecution.\61\
---------------------------------------------------------------------------
\61\ See, e.g., H.R. Rep. 82-1365, p. 1706 (Feb. 14, 1952).
The INA, however, did not address whether the authority could be
used to parole groups of inadmissible aliens.
Subsequent to 1952, the parole authority was repeatedly used to
parole large groups of inadmissible aliens, namely refugees from
Hungary, Cuba, China, Czechoslovakia, the Soviet Union, Uganda, and
Vietnam.\62\ Although some in Congress criticized this use of the
parole authority,\63\ Congress passed legislation to provide a path to
lawful permanent residence for certain groups of aliens who had been
paroled into the United States by the U.S. Government.\64\
---------------------------------------------------------------------------
\62\ See, e.g., Implementation of Haitian Family Reunification
Parole Program, 79 FR 75581 (Dec. 18, 2014); Procedures for Credible
Fear Screening and Consideration of Asylum, Withholding of Removal,
and CAT Protection Claims by Asylum Officers, 87 FR 18078 (Mar. 29,
2022) (lowering the standard to parole an alien who had not yet
established credible fear).
\63\ See, e.g., H. Rept. 89-748, p. 3335 (Sept. 15, 1965),
accompanying the Immigration and Nationality Act--Amendments of
1965:
Inasmuch as definite provision has now been made for refugees,
it is the express intent of the committee that the parole provisions
of the Immigration and Nationality Act, which remain unchanged by
this bill, be administered in accordance with the original intention
of the drafters of the legislation. The parole provisions were
designed to authorize the Attorney General to act only in emergent,
individual, and isolated situations, such as the case of an alien
who requires immediate medical attention, and not for the
immigration of classes or groups outside the limit of the law.
\64\ See, e.g., Public Law 85-559, 72 Stat. 419-20 (July 25,
1958) (stating that any alien who was paroled into the United States
as a refugee from the Hungarian Revolution who is found ``to have
been and to be admissible as an immigrant at the time of his arrival
in the United States and at the time of his inspection and
examination, except for the fact that he was not and is not in
possession of the documents required by . . . the Immigration and
Nationality Act, shall be regarded as lawfully admitted to the
United States for permanent residence as of the date of his
arrival''); Public Law 89-732, 80 Stat. 1161 (Nov. 2, 1966)
(similarly relating to aliens paroled into the United States after
fleeing Cuba due to the 1959 Cuban Revolution).
---------------------------------------------------------------------------
In 1980, Congress passed the Refugee Act, narrowing the parole
authority by prohibiting the parole of refugees unless ``compelling
reasons in the public interest with respect to that particular alien''
required parole rather than admission as a refugee.\65\ The parole
authority for non-refugees remained the same.
---------------------------------------------------------------------------
\65\ Public Law 96-212 (1980) (codified at 8 U.S.C.
1182(d)(5)(B)).
---------------------------------------------------------------------------
According to some scholars, the Refugee Act's amendment represented
continued congressional displeasure with the Executive Branch's use of
the parole authority in the preceding decades.\66\ The Senate Report
accompanying the Refugee Act states that one of the Act's purposes was
to ``[e]nd[ ] the years of ad hoc use of the parole authority, which
has been implemented by custom rather than clearly defined by law.''
\67\
---------------------------------------------------------------------------
\66\ E.g., Adam B. Cox & Cristina M. Rodr[iacute]guez, The
President and Immigration Law, 119 Yale L.J. 458, 474-76 (2009)
(``Congress added the language to the INA in 1980 in large part to
restrict the use of parole in refugee contexts, including with
respect to the Executive's heavy reliance on the power to manage the
Haitian exoduses.''); Peter Margulies, The Boundaries of Executive
Discretion: Deferred Action, Unlawful Presence, and Immigration Law,
64 a.m. U. L. Rev. 1183, 1213 (2015) (``This language itself emerged
in 1980 from congressional displeasure over expansive uses of
discretion by the Executive Branch.'').
\67\ S. Rep. 96-256 at 5 (1979).
---------------------------------------------------------------------------
Despite this congressional criticism, the Executive Branch
continued to use the parole authority to parole categories of aliens
from 1980 until 1996, including for Vietnamese and other Southeast
Asian populations, and U.S. expatriates.\68\ In 1996, Congress passed
the IIRIRA.\69\ As part of its reform of the immigration laws, Congress
specifically addressed its concerns about the broad use of the parole
authority to allow groups of refugees to come to the United States.
Congress amended the text of section 212(d)(5)(A) of the INA, 8 U.S.C.
1182(d)(5)(A), to make clear that the Attorney General could grant
parole, as a matter of discretion, ``only on a case-by-case basis for
urgent humanitarian reasons or significant public benefit'' (emphasis
added).\70\
---------------------------------------------------------------------------
\68\ Refugee Act of 1979, S.643 Before the S. Comm. on the
Judiciary, 96th Cong. 253, (1979) (annual report of H.E.W. on the
Indochinese Refugee Assistance Program) (describing an ``expanded
parole program'' for 11,000 additional Cambodian, Vietnamese, and
Laotian refugees); Marian Nash Leich, Contemporary Practice of the
United States Relating to International Law, 82 a.m. J. of Int'l L.
336, 336-337 (1988) (parole for U.S. expatriates who had renounced
U.S. citizenship) (citing to Circular Telegram, State 386507).
\69\ Public Law 104-208, Div. C (Sept. 30, 1996).
\70\ Id. at title VI, sec. 602.
---------------------------------------------------------------------------
Following Congress' amendment in 1996, the parole authority
continued to be used expansively to create new categorical parole
programs. In 2000, for example, the parole authority was used to manage
the statutorily sunsetting Visa Waiver Pilot Program under section 217
of the INA, 8 U.S.C. 1187, in its entirety, to avoid the wholesale
disruption of international travel and commerce, and the serious harm
to the U.S. economy and foreign relations, that would have resulted
from suddenly imposing visa requirements on visitors for business or
pleasure from most developed countries.\71\ Under this Visa Waiver
Pilot Program, tens of millions of foreign visitors were paroled into
the United States between May 1 and October 1, 2000.\72\ In subsequent
years, the parole authority was used to create smaller categorical
programs. For example, the Bush Administration created the Cuban Family
Reunification Parole program in 2007.\73\ The Obama Administration
created several parole programs, including the Haitian Family
Reunification Parole Program in 2014,\74\ the Filipino World War II
Veterans Parole program in 2016,\75\ and Parole for International
Entrepreneurs in 2017.\76\ More recently, the Biden Administration
created several categorical parole programs,\77\ including the parole
programs for inadmissible aliens from Cuba, Haiti, Nicaragua, and
Venezuela (``CHNV parole programs'').\78\
---------------------------------------------------------------------------
\71\ David J. Bier, 126 Parole Orders over 7 Decades: A
Historical Review of Immigration Parole Orders, July 17, 2023, at
https://www.cato.org/blog/126-parole-orders-over-7-decades-historical-review-immigration-parole-orders.
\72\ Cong. Research Service, Visa Waiver Program (Oct. 15,
2024), https://www.congress.gov/crs-product/RL32221.
\73\ 72 FR 65588 (Nov. 21, 2007).
\74\ 79 FR 75581 (Dec. 12, 2014).
\75\ 81 FR 28097 (May 9, 2016).
\76\ See 82 FR 5238 (Jan. 17, 2017). In 2018, DHS published a
proposed rule to rescind the International Entrepreneur Parole
Program. 83 FR 24415 (May 29, 2018).
\77\ 88 FR 1266 (Jan. 9, 2023); 88 FR 26329 (Apr. 28, 2023); 88
FR 1243 (Jan. 9, 2023); 88 FR 26327 (Apr. 28, 2023); 88 FR 1255
(Jan. 9, 2023); 87 FR 63507 (Oct. 19, 2022); 88 FR 1279 (Jan. 9,
2023).
\78\ On March 25, 2025, the Trump Administration published a
notice in the Federal Register titled, ``Termination of Parole
Processes for Cubans, Haitians, Nicaraguans, and Venezuelans''. 90
FR 13611 (Mar. 25, 2025). On April 14, 2025, a United States
district court issued a preliminary injunction order staying parts
of the FRN. See Svitlana Doe,--v. Noem, 778 F. Supp. 3d 311 (D.
Mass. 2025). However, DHS filed an application for a stay of the
district court order with the U.S. Court of Appeals for the First
Circuit, which was denied. On May 8, 2025, DHS filed with the
Supreme Court an application to stay the district court's order. On
May 30, 2025, the Supreme Court granted DHS' application for stay of
the district court's order pending disposition of the appeal pending
before the U.S. Court of Appeals for the First Circuit. Noem v. Doe,
145 S. Ct. 1524 (2025). Accordingly, the parole termination notices
and employment authorization termination notices that DHS sent to
aliens paroled under the CHNV parole programs remain in effect.
USCIS also will not process any new requests for parole related to
CHNV programs.
---------------------------------------------------------------------------
On July 4, 2025, the President signed H.R. 1, Public Law 119-21,
139 Stat. 72 into law. It established a new fee for an initial or
renewal application for employment authorization by any alien paroled
into the United States and also placed a limit on the validity of
employment authorization to one year or the duration of the alien's
parole, whichever is shorter.\79\
---------------------------------------------------------------------------
\79\ See Section 100003(b)(1) of Part I, Title X of Public Law
119-21 (July 4, 2025), 8 U.S.C. 1803(b)(1) (defining the validity
period for initial employment authorization of parolees to a period
of 1 year or for the duration of the alien's parole, whichever is
shorter); see also Section 100010(a) of Part I, Title X of Public
Law 119-21 (July 4, 2025); 8 U.S.C. 1809(a) (defining the validity
period for renewal employment authorization of parolees to a period
of 1 year or for the duration of the alien's parole, whichever is
shorter.). On July 22, 2025, USCIS published a notice in the Federal
Register at 90 FR 34511announcing the new H.R. 1 fee requirements,
applicable to benefit requests postmarked on or after July 22, 2025,
which includes application for employment authorization filed by
parolees under 8 CFR 274a.12(c)(11).
---------------------------------------------------------------------------
[[Page 34374]]
4. Deferred Action
Since the late 1800s, the Supreme Court has recognized the
authority of the Executive Branch to expel or exclude aliens from the
United States and viewed such power as ``an incident of sovereignty
belonging to the government of the United States as a part of those
sovereign powers delegated by the Constitution.'' \80\ This authority
was codified in the Immigration and Nationality Act of 1952, 8 U.S.C.
1101 et seq. Over the years, Congress has clarified and strengthened
the immigration enforcement authorities and provisions in the INA.\81\
In 2002, with the creation of DHS, Congress reaffirmed this authority
by giving the Secretary authority to enforce the immigration laws; to
apprehend, detain, and remove aliens from the United States; and to
establish ``national immigration enforcement policies and priorities.''
\82\
---------------------------------------------------------------------------
\80\ Chae Chan Ping v. United States, 130 U.S. 581, 606-09
(1889).
\81\ For example, in 1996, Congress passed the Anti-Terrorism
and Effective Death Penalty Act (AEDPA), Public Law 104-132, title
IV, 110 Stat. 1214 (Apr. 24, 1996) and IIRIRA. AEDPA and IIRIRA made
significant changes to U.S. immigration laws. By passing AEDPA and
IIRIRA, Congress underscored the importance of enforcement of the
immigration laws as critical for upholding national security, public
safety, and the integrity of the U.S. immigration system.
\82\ See Homeland Security Act of 2002 (HSA), Public Law 107-
296, secs. 202(5), 234; 6 U.S.C. 202(5), 557; see also INA secs.
103(a)(1) 8 U.S.C. 1103(a)(1)
---------------------------------------------------------------------------
The Secretary's enforcement powers also come with an inherent
authority to exercise prosecutorial discretion to not take a specific
enforcement action against an alien.\83\ Deferred action is a form of
discretion in which DHS chooses to not seek an alien's removal from the
United States even though the alien lacks lawful status or is otherwise
removable from the United States.\84\ Deferred action is not a legal
immigration status that permits an alien to obtain immigration relief
for which the alien is not eligible. Rather, deferred action is a form
of enforcement discretion reflecting a decision not to pursue removal
from the United States for a specified period of time. Unlike parole,
deferred action was not created by statute and is not specifically
defined in the INA. However, the authority not to execute an
enforcement action is a quintessential feature of the Secretary's
immigration enforcement powers. The Supreme Court has stated that the
decision not to take an enforcement action is within the discretion of
the agency, and such decisions are generally not subject to judicial
review.\85\
---------------------------------------------------------------------------
\83\ See, e.g., United States v. Texas, 599 U.S. 670, 679
(2023); Arizona v. United States, 567 U.S. 387, 396 (2012); Heckler
v. Chaney, 470 U.S. 821 (1985).
\84\ See, e.g., Reno v. Am.-Arab Anti-Discrimination Comm.
(AADC), 525 U.S. 471, 483-84 (1999).
\85\ See, e.g., Heckler, 470 U.S. at 831-33; see also Texas, 599
U.S. at 678-79 (describing the Executive's power to prioritize and
decide how aggressively to enforce the laws).
---------------------------------------------------------------------------
The former INS used deferred action for decades.\86\ Prior to 1975,
it was known as ``non-priority status'' and recognized as a use of
prosecutorial discretion to defer removal of an alien for a specific
period.\87\ Placing an alien in non-priority status was an authority
exercised by field district directors and was governed by INS Operating
Instructions (OI) and policy. For example, the OIs previously provided
examples of factors district directors could consider when deciding
whether to place an alien in non-priority status, which included: (1)
the likelihood of the alien's removal from the United States; (2) the
likelihood the alien would depart without formal proceedings; (3) the
age and physical condition of the alien in terms of affecting the
alien's ability to travel; (4) the likelihood another country would
accept the alien, if the alien were removed; (5) whether the alien
could qualify for relief under the immigration laws that would prevent
or indefinitely delay deportation from the United States; (6) whether
the alien was considered a high priority for removal (e.g., terrorists,
international drug traffickers, smugglers); and (7) whether the alien's
removal would generate adverse publicity.\88\ Non-priority status was
formally renamed deferred action in 1996.\89\ Deferred action is not a
legal immigration status that permits an alien to obtain immigration
relief for which the alien is not eligible. Rather, deferred action is
a form of enforcement discretion reflecting a decision not to pursue
removal from the United States for a specified period.
---------------------------------------------------------------------------
\86\ See Charles Gordon et al., ``Immigration Law and
Procedure'' (1956) 6 sec. 72.03(2)(h). See also generally Leon
Wildes, ``The Operations Instructions of The Immigration Service:
Internal Guidelines or Binding Rules?,'' 17 San Diego L. Rev. 99
(1979).
\87\ Id.
\88\ See Charles Gordon et al., at 16 Sec. OI 242.1.
\89\ Id.
---------------------------------------------------------------------------
Even though there is no direct statutory authority for deferred
action, Congress has acknowledged its use and, on certain limited and
unique occasions, has referenced deferred action as an interim form of
enforcement discretion to address compelling humanitarian
circumstances, further a specific policy goal, or act as a bridge until
specific legislative action could provide permanent relief.\90\ For
example, Congress referenced deferred action for alien victims of
domestic abuse, trafficking, and criminal activity, as well as family
members of individuals who perished during the 9/11 attacks, and
surviving family members of military personnel who died while serving
on active duty in the U.S. Armed Forces.\91\
---------------------------------------------------------------------------
\90\ Cong. Research Service, An Overview of Discretionary
Reprieves from Removal: Deferred Action, DACA, TPS, and Others (Apr.
10, 2018) https://www.congress.gov/crs-product/R45158.
\91\ See INA sec. 204(a)(1)(D)(i)(II) and (IV) (aliens battered
or subjected to extreme cruelty); INA sec. 237(d)(2) (victims of
trafficking and qualifying criminal activity); title IV, subtitle C,
sections 421-428, Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act
of 2001, Public Law 107-56, 115 Stat. 272 (Oct. 26, 2001) (certain
family members of lawful permanent resident 9/11 victims);
Posthumous Benefits for Surviving Spouses, Children, and Parents of
Certain Military Personnel, National Defense Authorization Act of FY
2004, Public Law 108-136, 117 Stat. 1392, title XVII, sec.
1703(c)(1)(A) and (d)(1) (certain surviving spouses, parents,
children of deceased veteran of U.S. Armed Forces).
---------------------------------------------------------------------------
DHS still uses deferred action today, not only to address discrete
situations and cases where there are exigent circumstances or
compelling humanitarian factors, but also as ``an act of administrative
choice to give some cases lower priority.'' \92\ Deferred action,
however, was never meant to supplant the current legal immigration
process or provide long-term relief solely to allow an inadmissible,
removable, or otherwise ineligible alien to remain in the United States
until he or she can qualify for a legal status.
---------------------------------------------------------------------------
\92\ See AADC, 525 U.S. at 483-84.
---------------------------------------------------------------------------
While DHS has previously chosen to make deferred action available
to large populations of aliens, the main and ancillary benefits of such
make the granting of deferred action an extraordinary exercise of the
Secretary's discretionary authority. A grant of deferred action should
only be made on a case-by-case basis after careful consideration of the
totality of the circumstances. Additionally, as deferred action is an
exercise of prosecutorial discretion, it is subject to termination at
any time and for any reason.
5. Employment Authorization
Whether an alien is authorized to work in the United States depends
on the alien's status in the United States
[[Page 34375]]
and whether employment is specifically authorized by statute or
pursuant to the Secretary's general discretionary authority. There are
very few statutory provisions that specifically require the provision
of employment authorization.\93\ While some statutory provisions
specifically allow the Secretary to grant employment authorization as a
matter of discretion,\94\ the Secretary's general authorities under
sections 103(a), 214(a)(1), and 274A(h)(3) of the INA, 8 U.S.C.
1103(a), 1184(a), 1324a(h)(3), among other provisions, provide the
authority to establish discretionary employment authorization
categories. However, in the context of aliens ordered removed, section
241(a)(7) of the INA, 8 U.S.C. 1231(a)(7), specifically prohibits an
alien who has been ordered removed from the United States from being
eligible to receive employment authorization unless the Secretary
determines that the alien cannot be removed because no country, as
designated by the alien or delineated under section 241(b) of the INA,
8 U.S.C. 1231(b), will accept the alien or the alien's removal is
otherwise impracticable or contrary to the public interest.
---------------------------------------------------------------------------
\93\ See, e.g., INA sec. 101(i)(2), 8 U.S.C. 1101(i)(2)
(requiring T nonimmigrants to be employment authorized); INA sec.
214(c)(2)(E), 8 U.S.C. 1184(c)(2)(E) (requiring spouses of L
nonimmigrants to be employment authorized); INA sec. 214(e)(2), 8
U.S.C. 1184(e)(2) (requiring spouses of E treaty traders/investors
to be employment authorized; INA sec. 214(p)(3)(B), 8 U.S.C.
1184(p)(3)(B) (requiring U nonimmigrants to be employment
authorized).
\94\ See, e.g., INA sec. 106(a), 8 U.S.C. 1105a(a) (providing
that the Secretary may grant employment authorization to alien
spouses of certain nonimmigrants if the alien spouse or child of
that alien spouse were battered or subjected to extreme cruelty);
INA sec. 214(p)(6), 8 U.S.C. 1184(p)(6) (providing that the
Secretary may grant employment authorization to aliens who have a
pending bona fide application for U nonimmigrant status).
---------------------------------------------------------------------------
DHS regulations at 8 CFR 274a.12 set forth the categories of aliens
who are authorized to work in the United States, including: those
aliens who are authorized to work incident to their status (8 CFR
274a.12(a)); aliens who are authorized to work in the United States but
only for a specific employer (8 CFR 274a.12(b)); and aliens who fall
within a category that the Secretary has determined may be employment
authorized as a matter of discretion (8 CFR 274a.12(c)). If required to
file an application for employment authorization with USCIS, aliens
must also submit the appropriate fee (unless exempt or waived) and in
accordance with the form instructions. See 8 CFR 274a.13.
6. Biometrics Submission
Several sections of the INA provide DHS with the specific authority
to collect or require submission of biometrics. See, e.g., INA section
235(d)(3), 8 U.S.C. 1225(d)(3) (providing authority ``to take and
consider evidence of or from any person touching the privilege of any
alien or person he believes or suspects to be an alien to enter,
reenter, transit through, or reside in the United States or concerning
any matter which is material and relevant to the enforcement of this
chapter and the administration of the Service''); INA section 287(b), 8
U.S.C. 1357(b) (powers of immigration officers and employees to
administer oaths and take evidence); INA section 333, 8 U.S.C. 1444
(requirement to furnish photographs for naturalization); INA section
335, 8 U.S.C. 1446 (investigation and examination of applicants for
naturalization); INA section 262(a), 8 U.S.C. 1302(a) (requirement for
aliens to register and be fingerprinted); INA section 264(a), 8 U.S.C.
1304(a) (authority to prescribe contents of forms required for alien
registration); see also INA section 103(a)(3), 8 U.S.C. 1103(a)(3)
(conferring broad authority on the Secretary to ``establish such
regulations; prescribe such forms of bond, reports, entries, and other
papers; issue such instructions; and perform such other acts as he
deems necessary for carrying out his authority under the'' immigration
laws).
DHS regulations accordingly provide that USCIS may require any
applicant, petitioner, sponsor, beneficiary, or individual filing a
benefit request to submit biometrics and pay the biometric services
fee.\95\ See 8 CFR 103.2(b)(9). DHS has the authority to require the
submission of biometrics from any alien, lawful permanent resident or
U.S. citizen filing a request, on a case-by-case basis, through law,
regulation, form instructions, or a Federal Register notice. Id.; see
also 8 CFR 103.16. Current regulations allow DHS to use biometric
information to conduct background and security checks, adjudicate
immigration benefits, and perform other functions related to the
administration of the INA. See id. at 103.16(a). DHS has the authority
to charge a biometric services fee associated with the submission of
biometric information. See 8 CFR 103.17.
---------------------------------------------------------------------------
\95\ Currently, biometrics collection generally refers to the
collection of fingerprints, photographs, and signatures. See USCIS,
``Preparing for Your Biometric Services Appointment'' (July 6,
2023), https://www.uscis.gov/forms/forms-information/preparing-your-biometric-services-appointment (describing biometrics as including
fingerprints, photographs, and digital signature).
---------------------------------------------------------------------------
On January 31, 2024, USCIS published a final rule to adjust certain
immigration and naturalization benefit request fees for the first time
since 2016.\96\ 89 FR 6194 (Jan. 31, 2024) (Fee Rule). The Fee Rule,
among other changes, amended USCIS filing fees to incorporate a
``biometric services fee'' into the cost of the related form filing fee
itself rather than charging a separate biometric fee. See 89 FR at
6277-78; see also 88 FR 402, 484-85 (Jan. 4, 2023) (proposed rule).\97\
The new filing fees were effective for filings postmarked April 1,
2024, and later. The USCIS Fee Schedule is published in the Form G-
1055, Fee Schedule.\98\ The most recent Fee Schedule was published on
March 6, 2025.
---------------------------------------------------------------------------
\96\ USCIS issued a final rule to adjust fees in 2020, but that
rule was preliminarily enjoined following litigation and ultimately
never went into effect. 85 FR 46788 (Aug. 3, 2020); Immigrant Legal
Res. Ctr. v. Wolf, 491 F. Supp. 3d 520 (N.D. Cal. 2020) (ILRC); Nw.
Immigrant Rights Project v. USCIS, 496 F. Supp. 3d 31 (D.D.C. 2020)
(NWIRP).
\97\ The exception to this change is Form I-821, Application for
Temporary Protected Status, which retained a separate biometric
services fee due to the statutory $50 maximum TPS registration fee.
8 CFR 106.2(a)(48)(iii); see INA sec. 244(c)(1)(B), 8 U.S.C.
1254a(c)(1)(B); 88 FR 485; see also 8 U.S.C. 1254b(a) (``In addition
to collection of registration fees described in section
1254a(c)(1)(B) of this title, fees for fingerprinting services,
biometric services, and other necessary services may be collected
when administering the program described in section 1254a of this
title.'').
\98\ https://www.uscis.gov/g-1055 (last updated Mar. 6, 2025).
---------------------------------------------------------------------------
The Fee Rule provided DHS flexibility in its biometrics submission
practices and policies to ensure that necessary adjustments can be made
to meet emerging needs, conduct biometrics-based background checks,
produce documents, and verify identities, while reducing filing
rejections. This approach simplified the fee structure, created a more
user-friendly experience, reduced rejections of benefit requests for
failure to include a separate biometric services fee, and better
reflected how USCIS uses biometric information.
7. E-Verify
Originating in 1996, the E-Verify program is a web-based system
that allows enrolled employers to confirm the eligibility of their
employees to work in the United States.\99\ E-Verify employers verify
the identity and employment authorization of newly hired employees by
electronically matching information provided by employees on the Form
I-9, Employment Eligibility Verification, against records available to
DHS
[[Page 34376]]
(identity and employment authorization) and the Social Security
Administration (SSA) (identity verification), thereby assisting
employers in maintaining a legal workforce and reducing the use of
fraudulent work documents. It also helps to improve the accuracy of
wage and tax reporting.
---------------------------------------------------------------------------
\99\ See E-Verify, ``About E-Verify'' https://www.e-verify.gov/about-e-verify.
---------------------------------------------------------------------------
E-Verify is a free, fast, online service that electronically
confirms an employee's information against millions of government
records and provides results within as few as 3 to 5 seconds. While E-
Verify is a voluntary program, some employers are required to enroll in
it as a condition of Federal contracting, or as a condition of business
licensing under State legislation or other applicable law.\100\
---------------------------------------------------------------------------
\100\ See, e.g., E.O. 13465 of June 6, 2008, Amending Executive
Order 12989, as amended, 73 FR 33285 (June 6, 2008) (requiring that
federal contractors participate in E-Verify); Ariz. Rev. Stat. sec.
23-214 (requiring every employer to ``verify the employment
eligibility of the employee through the E-Verify program'').
Overall, 24 states have passed laws to require employers to utilize
E-Verify to varying degrees, while 7 states, including Arizona,
Georgia, Mississippi, North Carolina, South Carolina, Tennessee, and
Utah, have E-Verify laws that require all or most employers to use
E-Verify.
---------------------------------------------------------------------------
Before an employer can participate in the E-Verify program, the
employer must enter into a Memorandum of Understanding (MOU) with
DHS.\101\ By executing the MOU, employers agree to abide by lawful
hiring requirements and to follow the E-Verify process to prevent
unauthorized disclosure of personal information and unlawful
discriminatory practices based on national origin or citizenship
status. Specifically, in the MOU, the employer agrees not to use E-
Verify for pre-employment screening of job applicants or in support of
any unlawful employment practice. The employer further agrees to comply
with title VII of the Civil Rights Act of 1964 and section 274B of the
INA, 8 U.S.C. 1324b, by not discriminating unlawfully against any
individual in hiring, firing, employment eligibility verification, or
recruitment or referral practices because of his or her national origin
or citizenship status, or by committing discriminatory documentary
practices. Illegal practices can include selective verification,
improper use of E-Verify, or discharging or refusing to hire an
employee because he or she appears or sounds ``foreign'' or has
received tentative non-confirmations (TNC) or mismatches. The MOU also
makes clear that USCIS may suspend or terminate an employer's access to
E-Verify if the employer violates title VII or section 274B of the INA,
8 U.S.C. 1324b; fails to follow required verification procedures; or
otherwise fails to comply with E-Verify requirements. Any employer who
violates the immigration-related unfair employment practices provisions
in section 274B of the INA, 8 U.S.C. 1324b, could face civil penalties,
including back pay awards. DHS may also immediately suspend or
terminate the MOU, and thereby the employer's participation in E-
Verify, if DHS or the SSA determines that the employer failed to comply
with established E-Verify procedures or requirements. In sum, violation
of the terms of this agreement by the employer is grounds for immediate
termination of its participation in the program.\102\
---------------------------------------------------------------------------
\101\ See E-Verify, ``The E-Verify Memorandum of Understanding
for Employers'' (June 1, 2013), https://www.e-verify.gov/sites/default/files/everify/memos/MOUforEVerifyEmployer.pdf.
---------------------------------------------------------------------------
Employers participating in E-Verify must still complete a Form I-9
for each newly hired employee, as required under current law.\103\
Following completion of Form I-9, the employer must enter the newly
hired worker's information into E-Verify, which then checks that
information against information contained in government databases.\104\
Once an employer enrolls in E-Verify, that employer is responsible for
confirming the employment eligibility of all new hires in E-Verify at
the hiring site(s) for which the employer has chosen to use E-
Verify.\105\ The earliest an employer may use E-Verify with respect to
an alien is after the alien accepts an offer of employment and the
employee and employer complete the Form I-9.\106\ Verification of the
employee's identity and employment authorization and creating the E-
Verify case must be done no later than the end of 3 business days after
the new hire's first day of employment. Generally, E-Verify applies to
new hires only and cannot be used to verify expiring work authorization
of a current employee (including those aliens authorized employment
under the (c)(11), (c)(14), and (c)(18) categories).\107\
---------------------------------------------------------------------------
\103\ See E-Verify, ``Account Compliance,'' https://www.e-verify.gov/employers/monitoring-and-compliance (last updated Aug.
20, 2019).
\104\ See id. For example, E-Verify compares employee
information against records in the SSA database and those available
to DHS. Most employees are automatically confirmed as work
authorized. In Fiscal Year 2024 (Oct. 2023-Sept. 2024), the E-Verify
program processed a total of 42,766,806 cases. During this same time
period, 98.49 percent of employees were automatically confirmed as
authorized to work (``work authorized'') either instantly or within
24 hours, requiring no employee or employer action. See E-Verify,
``E-Verify Performance,'' https://www.e-verify.gov/about-e-verify/e-verify-data/e-verify-performance (last updated Mar. 14, 2024).
\105\ E-Verify User Manual, Section 1.4. ``Verification
Locations and Hiring Sites,'' https://www.e-verify.gov/quick-reference-guide-for-e-verify-enrollment-10-introduction/14-verification-locations-and-hiring (last updated July 18, 2018).
\106\ ``E-Verify Performance,'' https://www.e-verify.gov/about-e-verify/e-verify-data/e-verify-performance (last updated Mar. 14,
2024).
\107\ E-Verify, ``May I Verify an Existing Employee in E-
Verify?'' (Aug. 18, 2023) (stating that only ``federal contractors
with a federal contract that contains the FAR E-Verify clause'' may
verify existing employees), https://www.e-verify.gov/faq/may-i-verify-an-existing-employee-in-e-verify.
---------------------------------------------------------------------------
E-Verify, which is available in all 50 states, the District of
Columbia, Puerto Rico, Guam, the U.S. Virgin Islands, and the
Commonwealth of the Northern Mariana Islands, is currently the best
means available to electronically confirm employment eligibility. The
program allows employers to confirm the eligibility of their employees
to work in the United States and shows that employers have done their
due diligence by comparing information from an employee's Form I-9,
Employment Eligibility Verification, to records available to DHS and
SSA.
C. Purpose
DHS has determined that the current regulations governing
discretionary employment authorization for aliens who are paroled into
the United States, have been granted deferred action, or have an order
of removal and an order of supervision do not adequately reflect DHS's
enforcement mission and priorities.
Obtaining employment authorization in the United States has long
been, and continues to be, a significant incentive for aliens to
(legally and illegally) migrate to and remain in the United
States.\108\ As such, employment authorization must be carefully
regulated to maintain the integrity of the U.S. immigration system.
---------------------------------------------------------------------------
\108\ See, e.g., Elizabeth Jacobs, Center for Immigration
Studies, The Availability of Work Authorization Is a Known `Pull
Factor' for Illegal Immigration and the Submission of Fraudulent
Asylum Claims (Feb. 7, 2024) (``The idea that work authorization
availability serves as a strong incentive for an alien to file a
fraudulent or frivolous asylum application is not a new one.''),
https://cis.org/Jacobs/Availability-Work-Authorization-Known-Pull-Factor-Illegal-Immigration-and-Submission.
---------------------------------------------------------------------------
1. Strengthening Protections for American Workers
This proposed rule is consistent with the Administration's efforts
to strengthen protections for American workers and minimize the risk of
disadvantaging American workers.
As noted above, E.O. 14159 articulates the Administration's goal
for the federal government to provide for the financial and economic
well-being of U.S. workers. Protecting, strengthening, and developing
the U.S. workforce is critical to establishing economic security,
[[Page 34377]]
stability, and growth for American workers. This proposed rule aligns
with these goals by limiting participation in the U.S. labor force to
aliens who warrant employment authorization, thereby creating more
opportunities for American workers to join or re-join the labor force.
Indeed, studies have shown that immigration adversely impacts native
workers through negative effects on wages along with employment
opportunities in the short-term,\109\ with the adverse impacts
typically, if not predominantly, borne by under-skilled or minority
native workers.\110\ This proposed rule will mitigate these adverse
impacts because it is possible that some aliens who would have received
employment authorization under the (c)(11), (c)(14), and (c)(18)
categories in the absence of this rule may compete for and potentially
occupy jobs that American workers might have otherwise acquired.
---------------------------------------------------------------------------
\109\ See, e.g., The Economic and Fiscal Consequences of
Immigration, National Academies of Sciences, Engineering, and
Medicine, Francine D. Blau and Christopher Mackie, Eds. National
Academies Press, 2017 at 267 (``Another regularity consistent with
theory is that there are larger negative effects on native wages
from immigrant inflows in the short run (i.e., in studies of the
immediate impacts of abrupt immigrant inflows or in which inflows
are observed over shorter periods of time, or in the case of the
structural studies, when capital is assumed fixed).
\110\ Id. at 241 (``Some notable patterns emerge. Confirming
expectations based on economic theory about which groups are most
negatively affected by immigration, native dropouts tend to be more
negatively affected than better-educated natives (as indicated by
comparing results for dropouts with the overall results for all
workers or all men or women). The results in the table also suggest
that this negative effect may be compounded for native
minorities.'').
---------------------------------------------------------------------------
In addition to the Administration's goal of protecting workers,
this proposed rule is also part of a broader initiative by the
President to modernize, strengthen, and revitalize the American
workforce at all levels. For example, E.O. 14278, Preparing Americans
for High-Paying Skilled Trade Jobs of the Future,\111\ espouses the
overarching commitment to ``equip American workers to fill the growing
demand for skilled trades and other occupations'' by, among other
things, developing ``[o]pportunities to integrate systems and realign
resources to address critical workforce needs and in-demand skills of
emerging industries and companies investing in the United States.''
E.O. 14278, secs. 2, 3(a). Relatedly, in America First Trade Policy,
the President articulated his goal of ``establishing a robust and
reinvigorated trade policy that promotes investment and productivity,
enhances our Nation's industrial and technological advantages, defends
our economic and national security, and--above all--benefits American
workers, manufacturers, farmers, ranchers, entrepreneurs, and
businesses.\112\ These pronouncements embody the President's
overarching goal of developing and bolstering opportunities for
American workers of all levels. This proposed rule, thus, represents,
one part of this larger initiative and broad array of policies to
strengthen protections for American workers.
---------------------------------------------------------------------------
\111\ 90 FR 17525 (Apr. 28, 2025).
\112\ 90 FR 8471 (Jan. 30, 2025).
---------------------------------------------------------------------------
2. Aliens With Final Orders of Removal
a. Immigration Enforcement
Enforcement of the nation's immigration laws is essential to the
integrity of the immigration system, as it ensures that only those who
are legally qualified and lawfully in the United States are allowed to
avail themselves of any benefits under the INA. In 1996, Congress
passed the Anti-Terrorism and Effective Death Penalty Act (AEDPA),
Public Law 104-132, title IV; 110 Stat. 1214 (Apr. 24, 1996) and the
IIRIRA, Public Law 104-208, div. C; 110 Stat. 3009 (Sept. 28, 1996).
AEDPA and IIRIRA made sweeping changes to U.S. immigration laws
focusing on immigration enforcement, detention of aliens, and bars to
certain types of relief, protection from removal, and grants of legal
status. IIRIRA expanded the Attorney General's (now Secretary's)
authority to detain aliens, including requiring mandatory detention of
aliens convicted of aggravated felony offenses and the detention of
aliens pending removal from the United States. It also created an
expedited removal process for aliens who do not have proper documents
or who make material misrepresentations and who are arriving in the
United States, or, as designated by the Secretary, aliens who have not
been inspected and admitted or paroled into the United States and
cannot prove continuous presence in the United States for at least 2
years.\113\ By passing AEDPA and IIRIRA, Congress made clear that
enforcement of the immigration laws is a priority and is critical for
purposes of national security, public safety, and the integrity of the
U.S. immigration system.
---------------------------------------------------------------------------
\113\ See INA sec. 235(b)(1), 8 U.S.C. 1225(b)(1).
---------------------------------------------------------------------------
However, DHS is not always able to promptly remove aliens with
final orders of removal. Sections 241(a)(1) and (2) of the INA, 8
U.S.C. 1231(a)(1) and (2), provide for a 90-day removal period in which
the Secretary is authorized to detain the alien and within which the
Secretary shall remove the alien. However, the removal of aliens from
the United States and repatriation to their home countries can be a
difficult and time-consuming process that can be further complicated by
legal appeals or impeded by a lack of sufficient agency resources.
Delays in removal can also occur because some countries unreasonably
delay the issuance of travel documents or unreasonably delay accepting
the repatriation of their nationals.
Although DHS has authority to detain aliens with final orders of
removal during the removal period, if DHS cannot effectuate an alien's
removal in a 6-month period, DHS must generally release such aliens
from detention.\114\ Based on data on removals executed by DHS, it may
take DHS 6 months or longer to obtain travel documents and remove an
alien from the United States.\115\ As stated above, based on 2019
removal data, it takes DHS an average of 187.19 days, roughly 6 months,
to obtain travel documents and remove an alien from the United States.
However, this length of time can change due to a number of factors such
as significant changes in migration, priority shifts, country
agreements, backlogs, advances in technology, delivery methods, and
security concerns. Due to the decision in Zadvydas, DHS has had to
release thousands of aliens from immigration detention as illustrated
in the table below, including aliens convicted of aggravated felonies
and other serious crimes.
---------------------------------------------------------------------------
\114\ See generally Zadvydas, 533 U.S. 678 (recognizing a six-
month period of detention to be presumptively reasonable for aliens
with final orders of removal).
\115\ Office of Inspector General, DHS, ``ICE Faces Barriers in
Timely Repatriation of Detained Aliens'' (Mar. 11, 2019), Table 2,
https://www.oig.dhs.gov/sites/default/files/assets/2019-03/OIG-19-28-Mar19.pdf. Please note, this is the most recent data available.
---------------------------------------------------------------------------
[[Page 34378]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.011
When aliens with final orders of removal are released from DHS
custody, the aliens are released under an order of supervision, which
contains conditions for release, such as requiring aliens to assist
with efforts to procure travel documents and present themselves for
removal in the event removal can be arranged. Once temporarily released
on an order of supervision, an alien may apply for employment
authorization under 8 CFR 274a.12(c)(18). Each year, USCIS approves
thousands of initial requests for employment authorization and renewals
of such authorization for aliens released from DHS custody on an OSUP,
as shown in Table III.2.
[GRAPHIC] [TIFF OMITTED] TP05JN26.012
As noted above, E.O. 14159 made the successful enforcement of final
orders of removal a priority for the Administration and directed the
Secretary to take all appropriate action to ensure the faithful
execution of immigration laws and to promptly revoke any memoranda,
guidance, policy, or action that is inconsistent with the objectives
espoused in E.O. 14159. Consistent with the above, DHS examined the
current regulation at 8 CFR 274a.12(c)(18) governing employment
eligibility for aliens with a final removal order and temporarily
released on OSUP. DHS determined that this regulation is inconsistent
with the Administration's enforcement priorities because it allows
aliens temporarily released on an order of supervision to qualify for
employment authorization
[[Page 34379]]
and, as such, incentivizes such aliens to remain in the United States
instead of complying with their removal order and departing the United
States.
The current regulation at 8 CFR 241.5(c) largely restates the
language of section 241(a)(7) of the INA, 8 U.S.C. 1231(a)(7),\116\ and
also does not clearly place the burden on the alien to establish that
he or she warrants a favorable exercise of discretion to obtain
employment authorization. It also does not require an alien who has a
final order of removal and has been temporarily released on an order of
supervision to establish on what basis he or she is seeking employment
authorization, either under section 241(a)(7)(A) of the INA, 8 U.S.C.
1231(a)(7)(A), because every country designated by the alien or
described in section 241(b) of the INA, 8 U.S.C. 1231(b) has refused to
receive the alien, or under section 241(a)(7)(B) of the INA, 8 U.S.C.
1231(a)(7)(B), because removal is impracticable or against the public
interest. Proposed 8 CFR 274a.12(c)(18) clarifies that the burden is on
the alien, not the U.S. Government, to establish that he or she is
eligible for a discretionary benefit. Further, DHS is now proposing to
clearly indicate that an alien applying for employment authorization
under the (c)(18) category must provide a completed ICE Form I-220B,
Order of Supervision indicating that DHS determined the alien could not
be removed because every country identified by the U.S. government as
an alternate country of removal, and every country the U.S. government
has asked to accept the alien, has failed to provide the appropriate
travel documents. See proposed 8 CFR 274a.13(a)(3)(iii). This change is
being made to clarify that DHS makes the determination if an alien's
removal is impracticable or contrary to the public interest, and the
alien must submit a completed I-220B reflecting this determination.
---------------------------------------------------------------------------
\116\ The Department notes that current 8 CFR 241.5(c)(1)--that
an officer may grant employment authorization if ``the alien cannot
be removed in a timely manner''--does not directly mirror INA
241(a)(7)(A), 8 U.S.C. 1231(a)(7)(A) (``No alien ordered removed
shall be eligible . . . unless the Attorney General makes a specific
finding that--(A) the alien cannot be removed due to the refusal of
all countries designated by the alien or under this section to
receive the alien''). The Department believes the changes made to 8
CFR 274a.12(c)(18)--providing that an alien is eligible for work
authorization under this category only if all countries from which
DHS requested travel documents have failed to issue such documents--
is more closely aligned with INA 241(a)(7)(A).
---------------------------------------------------------------------------
DHS has determined that granting employment authorization to aliens
who have final orders of removal and are released on OSUP, except in
very limited circumstances, undermines the removal scheme created by
Congress and incentivizes such aliens to remain in the United States
instead of complying with their removal orders, working with the
country of removal to obtain travel documents in a timely manner, and
departing the United States. DHS's proposed changes will encourage
aliens to obtain travel documents in a timely manner and depart the
United States as ordered. The revisions proposed under this rule will
address these concerns and align the grant of employment authorization
with the Administration's enforcement priorities.
b. Exception to Employment Authorization Bars
DHS recognizes that there are certain times an alien cannot be
removed from the United States because DHS is unable to obtain travel
documents from a country of removal. Therefore, DHS is proposing to
create a narrow exception to the bar to employment authorization. DHS
will continue to allow aliens who are subject to a final order of
removal and released on an order of supervision to apply for
discretionary employment authorization, if: (1) the alien is complying
with the conditions of release described in their order of supervision,
(2) DHS has determined that the alien's removal is impracticable,
either at the time of the alien's release from custody or at the time
the alien checks in with ICE as scheduled and required by the terms of
the alien's order of supervision, because all countries from which DHS
has requested travel documents at that time have failed to issue such
documents, (3) the alien establishes economic necessity, and (4) DHS
determines that the alien otherwise warrants a favorable exercise of
discretion for a grant of employment authorization.
DHS anticipates that the number of aliens who are subject to a
final order of removal for whom DHS has determined that their removal
is impracticable will be relatively small. For example, in FY 2024,
only 120 aliens who were temporarily released from ICE custody on OSUP
could not be removed in that fiscal year due to DHS's inability to
obtain travel documents during the fiscal year in which the aliens were
counted (Table III.3). DHS estimates this proposed rule would result in
an annual average of 322 aliens temporarily released from ICE custody
on OSUP remaining eligible for employment authorization under the
exception.
[[Page 34380]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.013
As reflected in Table III.3, the number of aliens who would qualify
for this exception should remain small because even after an alien is
temporarily released on OSUP, DHS continues to work with the
appropriate foreign governments to obtain travel documents, and DHS
sometimes receives travel documents for such aliens shortly after their
release or within the following fiscal year. As the 10-year average was
322 aliens, and no single year was above 660 aliens, DHS anticipates
that the number will remain relatively small.
Finally, allowing aliens who fall within the exception to be
eligible for employment authorization is consistent with section
241(a)(7) of the INA, 8 U.S.C. 1231(a)(7). Section 241(a)(7) bars
employment authorization for aliens who have been ordered removed,
unless certain conditions are met. No alien subject to a final order of
removal has a right to apply for or obtain employment authorization
from USCIS, and Congress made this clear when it enacted section 241 as
part of IIRIRA and stated that none of the provisions of this section
create any substantive or procedural right or benefit. See INA sec.
241(h), 8 U.S.C. 1231(h).\117\ Section 241(a)(7) of the INA, 8 U.S.C
1231(a)(7), however, gives the Secretary discretionary authority to
grant employment authorization if the Secretary determines, in his or
her sole and unreviewable discretion, that: (1) an alien cannot be
removed from the United States because all countries of removal as
designated by the alien or delineated under section 241 of the INA, 8
U.S.C. 1231, have declined to receive the alien, or (2) the alien's
removal is otherwise impracticable or contrary to the public interest.
INA sec. 241(a)(7)(A) and (B), 8 U.S.C. 1231(a)(7)(A) and (B). The
negative framing of the statute, that no alien shall be eligible for
employment authorization unless certain conditions are met,
demonstrates that these conditions are necessary, not sufficient, for
eligibility. The Secretary is thus not required to make a finding under
either INA 241(a)(7)(A) (an alien cannot be removed due to the refusal
of all countries designated by the alien or under this section to
receive the alien) or (B) (the alien's removal is ``otherwise
impracticable or contrary to the public interest''). See INA sec.
241(a)(7)(A), (B), 8 U.S.C. 1231(a)(7)(A), (B). Similarly, the
Secretary is not required to make a specific finding under either
clause of subparagraph (B). The Secretary can choose to maintain the
permanent bar on employment authorization for all aliens subject to a
final order of removal or otherwise establish reasonable requirements.
---------------------------------------------------------------------------
\117\ Section 241(h) of the INA, 8 U.S.C. 1231(h), specifically
states ``(h) Statutory construction.--Nothing in this section shall
be construed to create any substantive or procedural right or
benefit that is legally enforceable by any party against the United
States or its agencies or officers or any other person.''
---------------------------------------------------------------------------
In this rulemaking, DHS is not making any determination under
subparagraph (A) of section 241(a)(7) of the INA, 8 U.S.C. 1231(a)(7).
Such a determination is not necessary or required. Making such a
determination would be inconsistent with the Administration's
enforcement priorities. DHS works to ensure that all aliens who have a
final order of removal will eventually be subject to removal from the
United States, either, consistent with its non-refoulement obligations:
to a country where the alien is a citizen, subject, or national; to a
country where the alien was born or the alien has a residence; or to
any country that is willing to accept the alien.
DHS also is not making any determinations based on the ``public
interest'' clause of subparagraph (B) of section 241(a)(7) of the INA,
8 U.S.C. 1231(a)(7)(B), because there are already sufficient alternate
avenues available for aliens whom DHS has determined that it is in the
public's interest for them to remain temporarily in the United States
and receive employment authorization. The text of section 241(a)(7)(B)
of the INA, 8 U.S.C. 1231(a)(7)(B) is written in the disjunctive and,
as such, the two clauses in subparagraph (B) are separate and can be
analyzed separate and apart from each other.\118\ For example, when an
alien with a final order of removal is assisting law enforcement
entities, and the alien's removal is contrary to the public interest
because of such assistance, there are avenues for such an alien to
qualify for employment authorization, in part, based on his or
[[Page 34381]]
her assistance to law enforcement, not based on ``public interest''
under section 241(a)(7)(B). Aliens assisting law enforcement may
qualify for employment authorization if the aliens are eligible for T
nonimmigrant status (trafficking victims),\119\ U nonimmigrant status
(victims of qualifying criminal activity),\120\ or S nonimmigrant
status (witnesses in criminal investigations or prosecutions),\121\ or
are granted continued presence (temporary immigration designation for
certain trafficking victims),\122\ deferred action, or parole under
section 212(d)(5) of the INA, 8 U.S.C. 1182(d)(5). These existing
avenues reflect the public interest in strengthening cooperation with
law enforcement and provide DHS with the appropriate framework to
assess the nature of the alien's assistance to law enforcement.
---------------------------------------------------------------------------
\118\ See, e.g., Reiter v. Sonotone Corp., 442 U.S. 330, 339
(1979) (``Canons of construction ordinarily suggest that terms
connected by a disjunctive be given separate meanings, unless the
context dictates otherwise; here it does not.'') (citations
omitted).
\119\ See INA sec. 101(a)(15)(T), 8 U.S.C. 1101(a)(15)(T)
(eligibility requirements include compliance with any reasonable
request from a law enforcement agency for assistance in the
investigation or prosecution of human trafficking).
\120\ See INA sec. 101(a)(15)(U), 8 U.S.C. 1101(a)(15)(U)
(eligibility requirements include helpfulness to law enforcement in
the investigation or prosecution of a qualifying crime).
\121\ See INA sec. 101(a)(15)(S), 8 U.S.C. 1101(a)(15)(S)
(eligibility requirements include providing law enforcement
critical, reliable information necessary to the successful
investigation or prosecution of a criminal organization).
\122\ See 22 U.S.C. 7105(c)(3); 28 CFR 1100.35 (Federal law
enforcement official must determine the alien is a victim of a
severe form of trafficking and may be a potential witness to such
trafficking).
---------------------------------------------------------------------------
Therefore, except for aliens for whom the Secretary has made a
finding under the impracticability clause of section 241(a)(7)(B) of
the INA, 8 U.S.C. 1231(a)(7)(B), no alien with a final order of removal
who has been temporarily released on an order of supervision will be
eligible for employment authorization. This includes aliens who may
have previously been eligible for employment authorization based on the
refusal of countries to receive the alien under section 241(a)(7)(A) of
the INA, 8 U.S.C. 1231(a)(7)(A), or the public interest clause of
section 241(a)(7)(B) of the INA, 8 U.S.C. 1231(a)(7)(B). Furthermore,
for purposes of determining employment authorization eligibility only,
DHS clarifies that an alien's removal is ``otherwise impracticable''
under section 241(a)(7)(B) of the INA, 8 U.S.C. 1231(a)(7)(B), when DHS
determines that all countries from which DHS has currently requested
travel documents have failed to issue a travel document.
It is the Administration's policy to ensure the prompt removal of
aliens who have been issued a final order of removal. ICE works to
promptly remove aliens subject to a final order of removal from the
United States. Removal operations require integrated coordination,
management, and facilitation efforts. The removal of aliens subject to
final orders of removal is a national security priority for the United
States, highlighted by section 4 of E.O. 14159, making it a priority to
ensure ``the successful enforcement of final orders of removal.'' \123\
E.O. 14159 also notes that the enforcement of our immigration laws is
critically important to the national security and public safety of the
United States. The continued presence in the United States of aliens
with final orders of removal, many of whom are criminals who have
served time in our Federal, State, and local prisons and who have been,
in general, determined in immigration proceedings to be ineligible to
remain in the country, is contrary to the national interest. For this
reason, E.O. 14159 directed the Secretary to take all appropriate
action to enable the heads of ICE, CBP, and USCIS to set priorities for
their agencies that protect the public safety and national security
interests of the American people, including by ensuring the successful
enforcement of final orders of removal. E.O. 14159 also directed the
Secretary to rescind the policy decisions that led to the increased or
continued unauthorized presence of illegal aliens in the United States
and to align all departmental activities with the policies set out by
E.O. 14159.
---------------------------------------------------------------------------
\123\ See E.O. 14159, Protecting the American People Against
Invasion, 90 FR 8443 (Jan. 29, 2025).
---------------------------------------------------------------------------
Aliens with final orders of removal who are released from ICE
custody under section 241(a)(3) of the INA, 8 U.S.C. 1231(a)(3), are
subject to supervision.\124\ The supervision is effectuated through ICE
Form I-220B, Order of Supervision. Conditions for release typically
include regular check-ins with ICE; making good faith efforts to obtain
travel documents and travel arrangements; not associating with gangs,
criminals, or engaging in criminal activity; and participating in
requisite rehabilitative treatment programs.
---------------------------------------------------------------------------
\124\ When releasing on OSUP an alien who has been ordered
removed, ICE is not necessarily determining that all applicable
foreign countries are refusing to accept the alien. ICE's efforts to
effectuate removal are always ongoing, and even after an alien is
temporarily released on OSUP, ICE may return the alien to custody
and remove the alien from the United States.
---------------------------------------------------------------------------
DHS has identified that granting employment authorization to aliens
with final removal orders and released on OSUP exacerbates the
challenges in effectuating removal by incentivizing such aliens to
remain in the United States and possibly compete for jobs against
American workers, instead of complying with their removal orders,
working with the country of removal to obtain travel documents in a
timely manner, and departing the United States.
DHS currently extends eligibility for employment authorization
under 8 CFR 274a.12(c)(18) to aliens who have been ordered removed and
have been temporarily released from detention under section 241(a)(3)
of the INA, 8 U.S.C. 1231(a)(3), on an order of supervision
(colloquially referred to as the ``(c)(18) EAD''). See 8 CFR
274a.12(c)(18); see also 8 CFR 241.5(c). To apply for employment
authorization, the alien must currently file a Form I-765 accompanied
by required documentation and the proper fee. Required documentation
for a (c)(18) EAD currently includes a copy of the order of removal and
the order of supervision. USCIS requires aliens temporarily released on
OSUP to submit biometrics and pay the associated fee, if applicable, as
part of their initial or renewal employment authorization application.
If USCIS issues the alien a (c)(18) EAD, it is valid for 1 year,\125\
and USCIS mails an EAD according to the mailing preferences indicated
by the alien. To renew an alien's (c)(18) employment authorization, an
alien must file Form I-765, accompanied by required documentation,
biometrics and the proper fees, to demonstrate that he or she remains
on an order of supervision and continues to comply with it. USCIS may,
in its discretion, deny an application regardless of eligibility. If
USCIS denies the Form I-765 application, the agency sends a written
notice to the alien explaining the basis for denial.
---------------------------------------------------------------------------
\125\ All initial and renewal EADs issued under category (c)(18)
are currently valid for 1 year upon issuance. Replacement EAD cards
are issued for the same dates as the previous card that would have
had a validity period of 1 year.
---------------------------------------------------------------------------
DHS is proposing to require aliens who qualify for employment
authorization under the narrow exception to the general bar to
employment authorization under proposed 8 CFR 274a.12(c)(18) to
establish an economic necessity for employment during the period the
aliens are on OSUP. DHS proposes to revise the current list of factors
it considers as a matter of discretion when adjudicating such
applications for employment authorization to a list of requirements
that an alien must now establish, including: the alien's compliance
with the conditions for release; that DHS has determined the alien's
removal is impracticable because
[[Page 34382]]
all countries from which DHS requested travel documents have failed to
issue such documents; the alien establishes an economic necessity to be
employed; and the alien warrants a favorable exercise of discretion.
DHS also proposes to clarify that an alien may demonstrate an economic
necessity for employment by demonstrating that he or she is a primary
provider of economic support for a dependent U.S. citizen, lawful
permanent resident, or lawfully present child(ren), spouse, or
parent(s).
3. Aliens Who Have Received a Grant of Deferral of Removal Under the
Regulations Implementing CAT Article 3
Aliens who have received a grant of deferral of removal under CAT,
as described in 8 CFR 208.17 and 1208.17, and are released from custody
under an order of supervision would be eligible for employment
authorization pursuant to 8 CFR 274a.12(c)(18). USCIS would only grant
authorization under 8 CFR 274a.12(c)(18) if the alien meets the
eligibility criteria described in 8 CFR 274a.12(c)(18) and the alien
also warrants a favorable exercise of discretion. As discussed above,
aliens applying for employment authorization under the (c)(18) category
must provide a completed ICE Form I-220B, Order of Supervision
indicating that DHS determined the alien could not be removed because
every country identified by the U.S. government as an alternate country
of removal, and every country the U.S. government has asked to accept
the alien, has failed to provide the appropriate travel documents. See
proposed 8 CFR 274a.13(a)(3)(iii). Employment authorization will not be
automatic for this population of aliens and USCIS retains the authority
and discretion to determine their eligibility for EAD.
4. Aliens Paroled Into the United States
As noted above, parole is a temporary action, taken by the
Secretary in the Secretary's discretion, to allow an alien who is
inadmissible to temporarily enter or remain in the United States, based
on urgent humanitarian reasons or a significant public benefit. This
discretion is not meant to circumvent the normal process for legal
immigration to the United States. The Secretary's decision to exercise
discretion to temporarily parole an alien into the United States also
does not create any substantive rights or confer a lawful status to
such aliens and can be terminated at any time.
With some exceptions, DHS currently extends eligibility for
employment authorization under 8 CFR 274a.12(c)(11) to aliens who have
been paroled into the United States temporarily for urgent humanitarian
reasons or significant public benefit pursuant to section 212(d)(5) of
the INA, 8 U.S.C. 1182(d)(5) (colloquially referred to as the ``(c)(11)
EAD'').\126\ To apply for a (c)(11) EAD, an alien must file a Form I-
765 accompanied by required documentation and the proper fee (if
applicable).\127\ The required documentation to establish eligibility
for a (c)(11) EAD includes a copy of the alien's valid, unexpired Form
I-94, passport, or other travel document showing he or she was paroled
into the United States for urgent humanitarian reasons or significant
public benefit. If USCIS approves the alien's application, an EAD is
issued with a validity period of 1 year or for the duration of the
alien's parole, whichever is shorter, and mailed according to the
mailing preferences indicated by the alien.\128\ USCIS may, in its
discretion, deny an application regardless of eligibility. If USCIS
denies the Form I-765, the agency sends written notice to the alien
explaining the basis for denial pursuant to 8 CFR 274a.13(c).
---------------------------------------------------------------------------
\126\ There are some exceptions to eligibility for employment
authorization for individuals paroled into the United States. See,
e.g., 8 CFR 212.19(h)(4) (a child of an entrepreneur parolee is not
employment authorized). Further, in 2022, DHS and the Department of
Justice adopted an interim final rule that added new paragraphs 8
CFR 235.3(b)(2)(iii) and (b)(4)(ii), clarifying that ``parole'' for
aliens in expedited removal or during periods of detention pending a
credible fear interview would be for the limited purpose of parole
out of custody and would not serve as an independent basis for
employment authorization. Procedures for Credible Fear Screening and
Consideration of Asylum, Withholding of Removal, and CAT Protection
Claims by Asylum Officers, 87 FR 18078 (Mar. 29, 2022); see 8 CFR
235.3(b)(2)(iii) (a grant of parole for an alien in expedited
removal is for the limited purpose of parole out of custody, and
does not serve as a basis for employment authorization) and 8 CFR
235.3(b)(4)(ii) (parole of aliens pending credible fear
determination is for limited purpose of parole out of custody, and
does not serve as a basis for employment authorization).
\127\ Not all categories of (c)(11) EADs require a fee. For
example, (c)(11) EADs for Special Parole processes for Immigrant
Military Members and Veterans Initiative, where the alien is a
current or former U.S. armed forces service member, do not have a
fee. For additional information, see G-1055, Fee Schedule, https://www.uscis.gov/sites/default/files/document/forms/g-1055.pdf.
\128\ See Section 100003(b)(1) of One Big Beautiful Bill Act
(also known as ``H.R. 1''), Immigration and Law Enforcement Matters,
Part I, Title X of Public Law 119-21, 139 Stat. 72 (July 4, 2025). 8
U.S.C. 1803(b)(1) (requiring new immigration fees and defining the
validity period for initial employment authorization of parolees to
a period of 1 year or for the duration of the alien's parole,
whichever is shorter.); 90 FR 34511 (July 22, 2025) (USCIS notice
announcing the new fees required by HR-1); ``USCIS Updates Fees
Based on H.R.1'' (release date July 18, 2025), https://www.uscis.gov/newsroom/alerts/uscis-updates-fees-based-on-hr-1 (last
viewed on July 28, 2025). For EADs issued prior to July 22, 2025,
the date of the USCIS Federal Register notice announcing the new HR-
1 fees, parole-based EADs were generally valid for the duration of
the parole period.
---------------------------------------------------------------------------
Due to the temporary nature of parole, DHS has determined that
employment authorization based on parole should be further limited to
better align with the Administration's current immigration enforcement
priorities, including those outlined in E.O. 14159, and efforts to
strengthen protections for American workers. Moreover, it is in the
best interests of the American public to limit competition between U.S.
citizens and aliens for available jobs. Limiting employment
authorization for aliens minimizes any disadvantages currently faced by
U.S. citizens who are on the job market and increases the availability
of jobs filled by aliens in similar occupations, industries, and
geographic regions, such as jobs currently held by the parolees who
filed the 1,211,447 approved (c)(11)-based I-765s (initial and
renewals) between FY2021 and FY2024.\129\ DHS further wants to ensure
that aliens who are in the United States for a temporary period of
time, such as those who are temporarily paroled into the United States
for urgent humanitarian reasons or significant public benefit, warrant
a grant of employment authorization. Therefore, DHS proposes to amend 8
CFR 274a.12(c)(11) to require aliens applying for employment
authorization under 8 CFR 274a.12(c)(11) to establish an economic
necessity for employment and to demonstrate that the alien warrants a
favorable exercise of discretion. The types of documentation that may
be used to establish an economic necessity to be employed will be
provided in form instructions and other sub-regulatory guidance. DHS
also proposes to add a requirement that aliens seeking to renew
employment authorization under this category be employed by, or be
seeking employment with, a U.S. employer who is a participant in good
standing in E-Verify.
---------------------------------------------------------------------------
\129\ For more information, please see Table V.16: Total Annual
Form I-765 (c)(11) Filings Receipts and Approvals, FY 2015 through
FY 2024.
---------------------------------------------------------------------------
DHS also wants to ensure that parolees establish a need for
employment authorization, that any decision to grant employment
authorization is based upon that need, and that such a grant of
employment authorization is consistent with the reason for granting
parole. While DHS may have exercised its discretion to grant an alien
parole for urgent humanitarian reasons or significant public benefit,
the reasons for granting parole may not necessarily serve as the basis
for a grant of employment
[[Page 34383]]
authorization. The adjudication of the request for employment
authorization based on a grant of parole is intended to be a separate
decision wherein the discretionary factors related to the request for
employment authorization are weighed against each other on their own
and not against those that were weighed against each other when
granting parole, while noting that many of the discretionary factors
between the two may be the same and carry similar positive or negative
weight.
DHS is also proposing to amend 8 CFR 274a.12(c)(11) to conform with
8 CFR 235.3(b)(2)(iii) (detention and parole of aliens in expedited
removal) and 235.3(b)(4)(ii) (detention of aliens pending credible fear
interview) which state that such grants of parole are for the limited
purpose of parole out of custody and cannot serve as an independent
basis for employment authorization under 8 CFR 274a.12(c)(11).\130\
Accordingly, for ease of reference and clarity, DHS is proposing to add
this clarification to the 8 CFR 274a.12(c)(11) category itself.
---------------------------------------------------------------------------
\130\ As explained above, DHS and the Department of Justice
adopted an interim final rule in 2022 that added new paragraphs 8
CFR 235.3(b)(2)(iii) and (b)(4)(ii), clarifying that ``parole'' for
aliens in expedited removal or during periods of detention pending a
credible fear interview would be for the limited purpose of parole
out of custody and would not serve as an independent basis for
employment authorization. 87 FR 18078; see 8 CFR 235.3(b)(2)(iii) (a
grant of parole for an alien in expedited removal is for the limited
purpose of parole out of custody, and does not serve as a basis for
employment authorization); see also 8 CFR 235.3(b)(4)(ii) (parole of
aliens pending credible fear determination is for limited purpose of
parole out of custody, and does not serve as a basis for employment
authorization).
---------------------------------------------------------------------------
5. Aliens Granted Deferred Action
Unlike parole, deferred action was not created by statute and is
not specifically defined in the INA; however, as discussed above, the
authority not to execute an enforcement action is a quintessential
feature of the Secretary's immigration enforcement powers.\131\ Despite
the lack of direct statutory authority for deferred action, Congress
has acknowledged its use and, on several occasions, has referenced
deferred action as an interim form of enforcement discretion, as
discussed above.
---------------------------------------------------------------------------
\131\ See, e.g., Heckler, 470 U.S. 831.
---------------------------------------------------------------------------
DHS recognizes that there are some unique cases or compelling
situations that may warrant granting an alien deferred action. Deciding
whether to grant deferred action involves a review of an alien's
circumstances, weighing positive and negative discretionary factors,
and considering the totality of the circumstances. DHS will continue to
use deferred action on a case-by-case basis to address compelling
humanitarian circumstances, further a specific policy goal, or act as a
bridge until specific legislative action can provide permanent relief.
DHS will also continue to use deferred action as a temporary measure
for administrative convenience, especially considering limited
resources.
Whether aliens granted deferred action should be employment
authorized, however, is a separate policy determination that is
grounded in the Secretary's discretionary authority to grant employment
authorization under sections 103(a) and 274a(h)(3) of the INA, 8 U.S.C.
1103(a) and 1374a(h)(3).
As with employment authorization based on a grant of parole, DHS
also wants to ensure that any decision to grant employment
authorization based upon a grant of deferred action is based upon the
need for employment authorization and that such a grant of employment
authorization is consistent with the reason for deferred action. While
DHS may have exercised its discretion to grant deferred action, the
reasons for granting deferred action may not necessarily serve as the
same basis for a grant of employment authorization. The adjudication of
the request for employment authorization based on a grant of deferred
action is intended to be a separate decision wherein the discretionary
factors related to the request for employment authorization are weighed
against each other on their own and not against the factors that were
weighed against each other when granting deferred action, while noting
that many of the discretionary factors between the two may be the same
and carry similar positive or negative weight.
DHS currently extends eligibility for employment authorization
under 8 CFR 274a.12(c)(14) to aliens who have been granted deferred
action, if the alien establishes an economic necessity for employment
(colloquially referred to as the ``(c)(14) EAD''). For such aliens to
obtain employment authorization, they must file a Form I-765
accompanied by required documentation and the proper fee (if
applicable).\132\ The required documentation to establish eligibility
for employment authorization under 8 CFR 274a.12(c)(14) includes a copy
of the alien's order, notice, or other document reflecting the grant of
deferred action and proof that he or she has an economic necessity to
work. USCIS considers whether an alien granted deferred action has an
economic necessity to work by reviewing the alien's current annual
income, current annual expenses, and the total current value of his or
her assets.\133\ The alien is instructed to provide this financial
information on Form I-765WS, Form I-765 Worksheet.
---------------------------------------------------------------------------
\132\ For additional information, see USCIS, DHS, ``Fee
Schedule,'' G-1055 (Apr. 3, 2025), https://www.uscis.gov/sites/default/files/document/forms/g-1055.pdf.
\133\ See 8 CFR 274a.12(e).
---------------------------------------------------------------------------
If USCIS approves the alien's application for a (c)(14) EAD, it is
generally valid for the duration of the period of deferred action and
is mailed according to the mailing preferences indicated by the alien.
USCIS may, in its discretion, deny an application regardless of
eligibility. If USCIS denies the Form I-765, the agency sends a written
notice to the alien explaining the basis for denial pursuant to 8 CFR
274a.13(c).
DHS has determined that employment authorization should be further
limited to better align with the DHS enforcement mission and the
Administration's current immigration enforcement priorities, including
those outlined in E.O. 14159. For example, E.O. 14159 expressly states
that ``It is the policy of the United States to faithfully execute the
immigration laws against all inadmissible and removable aliens,
particularly those aliens who threaten the safety or security of the
American people[,]'' and it requires DHS ``to set priorities for their
agencies that protect the public safety and national security interests
of the American people, including by ensuring the successful
enforcement of final orders of removal.'' In addition, the E.O. compels
DHS to ``promptly take all appropriate action, consistent with law, to
rescind the policy decisions of the previous administration that led to
the increased or continued presence of illegal aliens in the United
States, and align any and all departmental activities with the policies
set out by this order and the immigration laws[,]'' and ``ensur[e] that
employment authorization is provided in a manner consistent with
section 274A of the INA (8 U.S.C. 1324a), and that employment
authorization is not provided to any unauthorized alien in the United
States.'' Limiting employment authorization for aliens granted deferred
action who have significant negative discretionary factors is
consistent with the enforcement priorities enumerated in E.O. 14159.
In addition, Executive Order 14161, ``Protecting the United States
From Foreign Terrorists and Other National Security and Public Safety
Threats'',
[[Page 34384]]
requires DHS to ``vet and screen to the maximum degree possible all
aliens who intend to be admitted, enter, or are already inside the
United States, particularly those aliens coming from regions or nations
with identified security risks.''
Therefore, to promote clarity, DHS is proposing to amend 8 CFR
274a.12(c)(14) to emphasize the requirement that aliens applying for
employment authorization based on a grant of deferred action must
establish economic necessity for employment and that the alien warrants
a favorable exercise of discretion, consistent with the priorities laid
out above. Also consistent with the above, DHS is proposing to amend 8
CFR 274a.12(c)(14) to limit employment authorization to a period not to
exceed one year.
In addition, DHS also proposes to add a requirement that aliens who
were granted initial employment authorization under 8 CFR
274a.12(c)(14) be employed by or seeking employment with a U.S.
employer who is a participant in good standing in E-Verify to be
eligible for a renewal of their employment authorization based on this
category.
IV. Discussion of Proposed Rule
A. Discretionary Employment Authorization Generally
DHS is proposing to revise several provisions in title 8 of the CFR
to emphasize and clarify how DHS will exercise its inherent
discretionary authority to grant employment authorization.
Many immigration benefits require an alien to demonstrate that the
request warrants a favorable exercise of discretion in order to receive
the benefit.\134\ For these benefits, a discretionary analysis is a
separate, additional component of adjudicating the benefit request. An
immigration officer typically determines whether to favorably exercise
discretion after first determining that the alien meets all applicable
threshold eligibility requirements.
---------------------------------------------------------------------------
\134\ See, e.g., Matter of Patel, 17 I&N Dec. 597 (BIA 1980)
(discussing discretionary aspect of adjustment of status
adjudications).
---------------------------------------------------------------------------
The discretionary analysis involves the review of all relevant,
specific facts and circumstances in an individual case. However, there
are limitations on how the officer may exercise discretion; the officer
may not exercise discretion arbitrarily, inconsistently, or in reliance
on biases or assumptions.
In some contexts, there are regulations and case law that outline
certain factors that officers must review and use as a guide in making
a discretionary determination.\135\ However, there is no exhaustive
list of factors that officers must consider when determining whether an
alien warrants a favorable exercise of discretion with respect to
employment authorization. To perform a discretionary analysis, officers
must weigh all positive factors present in a particular case against
any negative factors in the totality of the record. The analysis must
be comprehensive, specific to the case, and based on all relevant facts
known at the time of adjudication.\136\
---------------------------------------------------------------------------
\135\ See USCIS, ``Policy Manual,'' Volume 1, General Policies
and Procedures, Part E, Adjudications, Chapter 8, Discretionary
Analysis, FN 47, https://www.uscis.gov/policy-manual/volume-1-part-e-chapter-8.
\136\ See USCIS, ``Policy Manual,'' Volume 1, General Policies
and Procedures, Part E, Adjudications, Chapter 8, Discretionary
Analysis, https://www.uscis.gov/policy-manual/volume-1-part-e-chapter-8.
---------------------------------------------------------------------------
As described in Section II.B, ``Legal Authority,'' the Secretary's
authority to establish discretionary employment authorization
categories and the eligibility criteria for aliens to be granted
employment authorization exists in the Secretary's general authority,
among other provisions, under section 103(a) of the INA, 8 U.S.C.
1103(a) and section 274A(h)(3) of the INA, 8 U.S.C. 1324a(h)(3).
Accordingly, as part of this proposed rule, DHS is proposing to
amend 8 CFR part 274a to clarify how DHS will exercise its
discretionary authority as it relates to employment authorization. The
amendments to 8 CFR part 274a, discussed in further detail below, would
also codify requirements for aliens who are applying for initial and
renewal employment authorization under 8 CFR 274a.12(c) to submit
biometrics at an ASC and pay the associated biometric services fee, as
applicable. As noted above, however, the Asylum EAD Reform Rule
proposes to amend DHS's discretion as it relates to (c)(8) EADs.
The amendments to 8 CFR part 274a would also generally codify DHS's
existing practice of establishing validity periods for employment
authorization and DHS's authority to apply discretion when considering
a grant of employment authorization for applications filed under 8 CFR
274a.12(c), except for the employment eligibility categories that have
otherwise been addressed via statute \137\ or specific regulation.\138\
See proposed 8 CFR 274a.12(c), 274a.13(a)(1)(iv), and 274a.13(b).
---------------------------------------------------------------------------
\137\ See INA 244(a)(1)(B), 8 U.S.C. 1254a(a)(1)(B) ((c)(19));
INA 210(d)(2)(B), 8 U.S.C. 1160(d)(2)(B) ((c)(20)); INA 245A(e), 8
U.S.C. 1255a(e) ((c)(22)); Legal Immigration Family Equity Act (LIFE
Act), Public Law 106-553, Sec. 1104(c)(3)(C), 114 Stat. 2762, 2762A-
148 ((c)(24)).
\138\ For example, the regulations have long excepted and
continue to except (c)(8) EADs from discretionary considerations. 8
CFR 274a.13(a)(1).
---------------------------------------------------------------------------
DHS is proposing to clarify that USCIS will generally not approve
an application for initial or renewal of employment authorization,
unless DHS has determined there are significant countervailing public
interests, which may include assisting law enforcement activity in the
United States, if (1) the alien: has been arrested for, charged with
(without disposition), indicted for, or has been convicted of, any
criminal act; or (2) the alien admits to committing a violent or
dangerous crime, even if he or she has never been formally arrested,
charged, indicted or convicted; or (3) there is evidence of the alien's
membership in a gang or terrorist organization. See proposed 8 CFR
274a.13(a)(1)(iv). DHS emphasizes that these discretionary factors
apply to all categories of employment authorized under 8 CFR 274a.12(c)
(other than (8), (19), (20), (22), and (24)), including aliens granted
deferred action based on Deferred Action for Childhood Arrivals (DACA),
a bona fide T nonimmigrant status application [which will be
adjudicated consistent with 22 U.S.C. 7101(b)(19)] or U nonimmigrant
status petition, or a waitlisted U nonimmigrant status petition).
By eliminating, with one limited exception, discretionary
employment authorization for aliens for whom there exists evidence of
membership in a gang or terrorist organization, DHS is creating a
disincentive for aliens to affiliate themselves with gangs and
terrorist organizations and conforming its regulations with
Administration priorities. DHS hopes this disincentive will be
especially effective for aliens who intend to apply for employment
authorization by imposing serious consequences on those who may
otherwise affiliate themselves with groups that wish to harm the United
States. When reviewing the available evidence, DHS will apply a multi-
factor approach that takes into consideration all evidence and relevant
factors (for example, and this list is by no means exhaustive, tattoos,
clothing, and evidence including pictures or statements which indicate
the alien has adopted a group identity used to intimidate or create
fear) rather than applying any bright line rules. Pertinent evidence
will change over time as gangs and terrorist organizations adopt new
markers, tactics, and means of operating. Grants of employment
[[Page 34385]]
authorization for these categories of aliens fall within the broad
discretion afforded to the Department. In sum, aliens for whom evidence
demonstrates membership in a gang or terrorist organization would not
warrant a favorable exercise of discretion for employment authorization
unless DHS has determined there are significant countervailing public
interests, which may include assisting law enforcement activity in the
United States. As it is not specifically addressed in this proposed
rulemaking, DHS will provide information regarding the standard of
proof for evidence of membership in a gang or terrorist organization
through departmental guidance.
DHS notes that generally declining to grant employment
authorization to aliens for whom there is evidence of membership in a
gang or terrorist organization is consistent with the Administration's
priorities of combating terrorism and the harms inflicted by gangs.
E.O. 14159, Protecting the American People Against Invasion, recognized
the importance of ``end[ing] the presence of criminal cartels, foreign
gangs, and transnational criminal organizations throughout the United
States.'' \139\ E.O. 14161 announced the Administration's goal ``to
protect its citizens from aliens who intend to commit terrorist
attacks, threaten our national security, espouse hateful ideology, or
otherwise exploit the immigration laws for malevolent purposes.'' \140\
The E.O. further announces the objective of ``ensur[ing] that admitted
aliens and aliens otherwise already present in the United States do not
bear hostile attitudes toward its citizens, culture, government,
institutions, or founding principles, and do not advocate for, aid, or
support designated foreign terrorists or other threats to our national
security.'' By not granting employment authorization to those with ties
or other evidence of membership in a gang or terrorist organization,
the Department is conforming its regulations and practices to the
stated policies of the Administration.
---------------------------------------------------------------------------
\139\ 90 FR 8443.
\140\ 90 FR 8451.
---------------------------------------------------------------------------
Additionally, regarding victims of serious crimes or severe forms
of trafficking in persons, DHS has considered that some aliens will not
receive a favorable decision on their discretionary employment
authorization even though the alien is or will be deemed a bona fide
applicant or petitioner, may be placed on the U visa waiting list, may
receive a waiver of inadmissibility based on the same crime or crimes
that rendered them ineligible for discretionary work authorization, and
may ultimately have their victim-based petition or application approved
despite the aforementioned crime or crimes. DHS has determined that,
for consistency, all discretionary employment authorizations should
generally be considered under the same analytical framework, as
described elsewhere in this preamble. Accordingly, it is not necessary
to provide any exceptions or exemptions for these populations because
all populations should, generally, be considered equally in the
presence of negative discretionary factors, per the Administration's
priorities. Further, while this proposed rule would expand or revise
some of the factors that must be considered within discretionary
analysis prior to granting employment authorization, DHS already
conducts discretionary analysis, including a review of national and
public safety concerns, prior to issuing work authorization for these
categories. For example, under current policy, DHS generally declines
to exercise its discretion to grant work authorization and deferred
action to a pending principal U nonimmigrant petitioner, or his or her
qualifying family member, who has been convicted of, or arrested for, a
crime or crimes that indicate a risk to public safety or national
security and would generally render the alien inadmissible. Consistent
with DHS's discretionary authority, this proposed rule simply builds on
the current requirements and confirms DHS's decision not to provide
work authorization to aliens who pose a potential or confirmed public
safety or national security risk, regardless of any other favorable
factors that may be present in their individual cases or the category
under which the alien seeks employment authorization.
1. Biometrics Submission and Criminal History
Currently, DHS only requires certain categories of aliens to submit
biometrics. When required to do so, these aliens receive a biometric
services appointment notice from USCIS to appear at a USCIS application
support center (ASC) to submit their biometrics--typically a
photograph, fingerprints, and a signature. DHS uses biometrics for
identity verification and secure EAD production. DHS is proposing to
codify the requirement to submit biometrics and the requirement to pay
any associated biometric services fee (if applicable) from all aliens
seeking employment authorization under 8 CFR 274a.12(c). See proposed 8
CFR 274a.13(a). In addition, DHS will use the alien's biometrics to
screen for criminal history and perform background checks.
DHS has a strong interest in ensuring public safety and preventing
aliens with criminal histories from obtaining a discretionary benefit,
such as employment authorization. As such, for all aliens applying for
category (c), and who meet all other applicable category-specific
eligibility requirements, DHS will consider each alien's entire
criminal history, including any criminal activity after the alien's
release on OSUP or grant of parole or deferred action, in determining
whether DHS will favorably exercise its discretion to grant employment
authorization. Where criminal history is a factor in the adjudication
of an immigration benefit, DHS generally conducts biometric-based
screenings to independently identify and verify criminal history in
addition to reviewing any evidence submitted by the alien regarding his
or her criminal history.\141\ With the proposal to require the
submission of biometrics from every alien applying for employment
authorization under 8 CFR 274a.12(c), DHS intends to use those
biometrics for identity verification and secure EAD production, while
also using the submitted biometrics to perform criminal history
background checks for public safety, fraud, and national security
vetting. This will allow USCIS to properly vet these aliens applying
for employment authorization and make an appropriate discretionary
determination based upon the results of each applicant's criminal
background check. USCIS would continue to notify aliens of the proper
date, time, and location to submit their biometrics after the
application for employment authorization has been filed.
---------------------------------------------------------------------------
\141\ See ``Privacy Act of 1974; System of Records,'' 83 FR
36950 (July 31, 2018).
---------------------------------------------------------------------------
In considering the criminal history of an alien, DHS notes that
while an alien's successful participation in state or federal programs
(such as pretrial diversion programs) may not constitute a conviction
for the purposes of the INA, DHS will consider the initial criminal
arrest or law enforcement encounter as a negative discretionary factor.
In general, DHS will not favorably exercise its discretion to grant
employment authorization to aliens who enter into agreements that
impose some form of punishment, penalty, or a restraint on liberty.
This includes agreements or programs where an alien's criminal record
has been sealed or expunged.
[[Page 34386]]
Further, DHS intends to shorten the validity period of the
discretionary EADs (e.g., not more than one year) impacted by the
proposed rule and place the burden on the alien to ensure ongoing
eligibility of those applying for EADs under these categories.
Specifically, DHS is proposing to limit the validity period for EADs
issued for deferred action and OSUP-based employment authorization
categories to a duration not to exceed one year, to align with other
limits imposed in H.R. 1. For additional discretionary categories, DHS
and USCIS, at their discretion, may shorten these EAD validity periods
by issuing sub-regulatory guidance in the future. In addition to
ensuring continuous eligibility, this also supports ongoing management
of aliens on an OSUP to ensure aliens are complying with the terms and
conditions of the OSUP and have not reoffended or absconded. The burden
should be on the alien to comply with biometrics requirements with each
application for employment authorization to ensure USCIS has the most
up-to-date and accurate background check information.
2. Filing Fees
On January 31, 2024, USCIS published a final rule to adjust certain
immigration and naturalization benefit request fees for the first time
since 2016.\142\ The new filing fees were effective for filings
postmarked April 1, 2024, and later. The USCIS Fee Schedule is
published in the Form G-1055, Fee Schedule.\143\ This proposed rule
does not propose to change the associated filing fee for the Form I-
765, Application for Employment Authorization as documented in the most
recent G-1055.
---------------------------------------------------------------------------
\142\ In all cases, the previous ``Biometric Services Fee'' was
incorporated into the related form filing fee, with the exception of
Form I-821, Application for Temporary Protected Status. See 89 FR
6194 (Jan. 31, 2024).
\143\ https://www.uscis.gov/g-1055 (last updated Mar. 6, 2025).
---------------------------------------------------------------------------
3. E-Verify
DHS also proposes to revise 8 CFR 274a.12(c)(11), (c)(14), and
(c)(18) to reflect that aliens seeking renewal of their employment
authorization under these employment authorization categories must be
employed by or seeking employment with a U.S. employer who is a
participant in good standing in E-Verify. Therefore, in addition to the
requirements to be eligible for an initial grant of employment
authorization under 8 CFR 274a.12(c)(11), (c)(14), and (c)(18) when
seeking renewal of that employment authorization, an alien must also
demonstrate he or she is employed by or is seeking employment with a
U.S. employer who is a participant in good standing in E-Verify.
So, to be eligible to renew one's employment authorization under
proposed 8 CFR 274a.12(c)(11), an alien must demonstrate he or she has
a current grant of parole, establish both an economic necessity for
employment and that they warrant favorable exercise of discretion, and
be employed by or be seeking employment with a U.S. employer who is a
participant in good standing in E-Verify. To be eligible to renew one's
employment authorization under proposed 8 CFR 274a.12(c)(14), an alien
must demonstrate he or she has a current grant of deferred action,
establish an economic necessity for employment, warrant a favorable
exercise of discretion, and be employed by or be seeking employment
with a U.S. employer who is a participant in good standing in E-Verify.
Lastly, to be eligible to renew one's employment authorization under
proposed 8 CFR 274a.12(c)(18) an alien must demonstrate he or she has
been released under an order of supervision under section 241(a)(3) of
the INA, 8 U.S.C. 1231(a)(3), is complying with the conditions of
release described in their order of supervision, is one whose removal
DHS has determined is impracticable because all countries from which
DHS requested travel documents have failed to issue such documents,
establish an economic necessity for employment, warrant a favorable
exercise of discretion, and be employed by or be seeking employment
with a U.S. employer who is a participant in good standing in E-Verify.
Aliens can ensure they only accept employment from an E-Verify
employer by using the E-Verify Employer Search Tool \144\ on the
publicly available website to determine if the employer is currently
enrolled in E-Verify. If the employer's name appears on the list, this
is a good indication of their enrollment and good standing. E-Verify's
Account Compliance section terminates employers who are not compliant
with E-Verify rules (and therefore not in good standing), and if an
employer is terminated, the E-Verify team will update the search tool.
Employers can request reinstatement after termination if they fix the
underlying issue, so the search tool is updated daily.\145\
---------------------------------------------------------------------------
\144\ E-Verify Employer Search Tool can be found at: https://www.e-verify.gov/e-verify-employer-search.
\145\ Id.
---------------------------------------------------------------------------
An alien can demonstrate he or she is employed by or is seeking
employment with a U.S. employer who is a participant in good standing
in E-Verify by providing the U.S. employer's name as listed in E-Verify
and the employer's E-Verify Company Identification Number (CIN) (or
Client Company Identification Number if the U.S. employer uses an
agent). While the CIN is not available via the search tool, an alien
can obtain the number by contacting their employer or prospective
employer.\146\ As this number does not change, any alien applying for
renewal with the same employer would already have this number. An alien
who fails to establish that he or she is employed by or is seeking
employment with a U.S. employer who is a participant in good standing
in E-Verify would not be eligible for renewal of his or her employment
authorization and an EAD.
---------------------------------------------------------------------------
\146\ This is the same requirement as that of F-1 students
applying for a 24-month extension of post-completion optional
practical training, more commonly known as STEM OPT. 8 CFR
214.2(f)(10)(ii)(C)(5).
---------------------------------------------------------------------------
DHS will consider an employer to be a participant in good standing
with E-Verify if, at the time of filing of the application for renewal
of employment authorization, the employer (1) has enrolled in E-Verify
with respect to all hiring sites in the United States that employ an
alien with employment authorization under 8 CFR 274a.12(c) and (2) is
in compliance with all requirements of E-Verify, including but not
limited to, verifying the employment eligibility of newly hired
employees at such hiring sites.
Requiring aliens who are seeking renewal of their employment
authorization under the (c)(11), (c)(14), and (c)(18) categories to be
employed by or seeking employment with a U.S. employer who is a
participant in good standing in E-Verify promotes the integrity of the
immigration system and the labor market in the United States. This
requirement creates a system where aliens who are seeking to renew
their employment authorization under the (c)(11), (c)(14), and (c)(18)
categories are engaged with employers that, through their E-Verify MOU,
have agreed to confirm the eligibility of their newly hired employees
to work in the United States and to only hire people who are authorized
to work in the United States and take the additional step to confirm
Form I-9 information using E-Verify. This requirement also creates a
system that prevents the displacement of American workers by
guaranteeing that employers are engaging with aliens who maintain their
basis for employment authorization and
[[Page 34387]]
are not working unlawfully in the United States. In instances where an
alien's parole or deferred action is terminated and his or her EAD is
revoked but USCIS is unable to recover the revoked EAD, the alien may
be able to continue to present the EAD to potential employers. An
employer who is a participant in good standing in E-Verify will be able
to correctly determine the alien's employment authorization status
based on current government records even if the alien presents an EAD
that appears to be facially valid.
4. Economic Necessity
DHS is proposing to modify 8 CFR 274a.12(c)(11), (c)(14), and
(c)(18) to indicate that aliens in all three of these categories must
establish that they have an economic necessity for employment. This
change will result in consistency among the three categories, in
contrast to the current requirement, which currently only mandates that
aliens who received deferred action under (c)(14) and those with a
final order of removal under (c)(18) must establish economic necessity.
This proposed change will consistently ensure that only aliens with an
economic need to work will be eligible for discretionary employment
authorization in these categories, as well as minimize the potential
risk of disadvantaging American workers.
This proposed change also promotes the Administration's objective
to strengthen and enforce protections for American workers. In limiting
employment authorization to those aliens who establish an economic
necessity for employment and warrant a favorable exercise of discretion
by USCIS, this rule will remove barriers and open pathways for American
workers to participate in positions that may otherwise be filled by
aliens. This rule will disincentivize aliens with a final order of
removal from remaining in the United States and thus expand labor
opportunities for American workers. This proposed rule change
contributes to a broader initiative on the part of the federal
government to fulfill the President's domestic policy goal of orienting
American workers for jobs of the future and for a revitalized economy.
B. Discretionary Employment Authorization for Aliens on OSUP
Section 241(a)(7) of the INA, 8 U.S.C. 1231(a)(7), specifically
prohibits an alien who has been ordered removed from the United States
from being eligible to receive employment authorization unless the
Secretary, in his or her discretion, determines, under subparagraph
(a)(7)(A), 8 U.S.C. 1231(a)(7)(A), that the alien cannot be removed due
to the refusal of all countries designated by the alien or under
section 241(b) of the INA, 8 U.S.C. 1231(b), to accept the alien or,
under subparagraph (a)(7)(B), 8 U.S.C. 1231(a)(7)(B), the alien's
removal is otherwise impracticable or contrary to the public interest.
Neither the INA nor the regulations mandate issuance of employment
authorization to any alien subject to a final order of removal or based
on such alien's temporary release from custody on an order of
supervision. The statute preserves the Secretary's discretion to decide
if employment authorization should be granted and, if yes, to which
classes of aliens based upon a finding under subparagraph (A) or (B) of
section 241(a)(7) of the Act, 8 U.S.C. 1231(a)(7)(A), (B).
DHS is proposing to revise 8 CFR 274a.12(c)(18) to amend
eligibility for employment authorization for all aliens who have final
orders of removal and who DHS has temporarily released from custody on
an order of supervision, except for aliens for whom DHS has determined
that their removal from the United States is impracticable because all
countries from which DHS has requested travel documents have failed to
issue such documents. See proposed 8 CFR 274a.12(c)(18). Providing
employment authorization to aliens who do not fall within this
exception undermines the integrity of the immigration system by
incentivizing aliens with a final order of removal to remain in the
United States instead of complying with their orders of removal,
obtaining travel documents in a timely manner, and departing the United
States.
Encouraging aliens who do not fall within the exception provided in
this rule to timely depart the United States also promotes the
efficient use of DHS's limited resources. Managing aliens released on
OSUP consumes an inordinate amount of DHS resources. Management of
aliens temporarily released on OSUP requires tracking and monitoring
the status of such aliens, as well as conducting regular check-ins to
ensure compliance with the conditions of release. This time-intensive
process takes away from other enforcement priorities such as
identifying, detaining, and removing criminal aliens or aliens who pose
threats to the national security and public safety of the country. The
rule also aligns with the Administration's goals of strengthening
protections for American workers.
DHS has determined that continuing to provide employment
authorization to those aliens who fall within the narrow exception
provided in this rule is consistent with the impracticability clause of
section 241(a)(7)(B) of the INA, 8 U.S.C. 1231(a)(7)(B). Table IV.1
below shows the subset of aliens released on OSUP for whom DHS cannot
obtain travel documents annually.
[[Page 34388]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.014
In some instances, even if DHS is not able to obtain travel
documents for an alien in one fiscal year, DHS is able to obtain such
documents in a subsequent fiscal year. DHS expects the number of aliens
whose removal from the United States is impracticable because all
countries from which DHS has requested travel documents have failed to
issue such documents will remain very low. As such, DHS has determined
that it is not contrary to the INA or the Administration's enforcement
priorities to allow such aliens to work while remaining in the United
States and until the aliens can be removed.
For aliens whose removal from the United States is impracticable,
DHS is making economic necessity, which is currently only a
discretionary factor, a mandatory eligibility requirement, consistent
with other discretionary employment authorization categories. See,
e.g., 8 CFR 274a.12(c)(18). As such, aliens who are eligible for
employment authorization based on the exception created in this
proposed rule will need to demonstrate economic necessity for
employment. Aliens who are financially able to support themselves will
not be eligible for employment authorization and an EAD.
DHS is codifying its existing practice of limiting the validity
period for employment authorization under 8 CFR 274a.12(c)(18), whether
for an initial or renewal EAD, to a period not to exceed 1 year. All
initial and renewal (c)(18) EADs are currently valid for a maximum of 1
year upon issuance.\147\
---------------------------------------------------------------------------
\147\ See generally DHS, ``Annual Report 2024: Citizenship and
Immigration Services Ombudsman,'' section ``Meeting the Growing
Demand for Employment Authorization Documents'' (June 28, 2024),
https://www.dhs.gov/sites/default/files/2024-07/24_0628_cisomb_2024-annual-report.pdf.
---------------------------------------------------------------------------
DHS is also proposing to add specific provisions related to
employment authorization granted under 8 CFR 274a.12(c)(18) to the list
of triggering events in 8 CFR 274a.14(a) that automatically terminate
certain categories of employment authorization. Specifically, if a
condition of the order of supervision is the alien's material support
to a law enforcement investigation or prosecution, DHS is proposing
that employment authorization under 8 CFR 274a.12(c)(18) will
automatically terminate upon the termination of any agreement based on
the alien's material cooperation with a qualifying law enforcement
entity or the conclusion of the criminal investigation or prosecution.
In addition, the rule proposes that the employment authorization would
terminate if the alien obtains the required travel or other documents
to remove the alien from the United States. See proposed 8 CFR
274a.14(a)(vi). These provisions are intended to ensure that the alien
complies with all conditions of release on OSUP and are consistent with
the Administration's priority of ensuring that aliens temporarily
released on OSUP only have employment authorization for an appropriate
period.
DHS is proposing to require aliens temporarily released on OSUP who
are eligible for employment authorization to submit the following
documents: (1) a copy of a decision by an IJ or the BIA, or an
administrative removal order issued by DHS, demonstrating that the
alien is subject to a final order of removal or deportation; (2) a form
designated by USCIS, such as a completed Form I-765 including Form I-
765WS, and documentary evidence such as statements of income, expenses,
and assets, and/or any other evidence demonstrating that he or she is a
primary provider of economic support for a dependent U.S. citizen,
lawful permanent resident, or lawfully present child(ren), spouse, or
parent(s) to show economic necessity; \148\ and (3) a copy of the
current and complete Order of Supervision \149\ (Form I-220B),
including a copy of the complete Personal Report Record that reflects
compliance with the conditions for release.
---------------------------------------------------------------------------
\148\ See also 8 CFR 274a.12(e), which provides that the Federal
Poverty Guidelines issued by the Department of Health and Human
Services under the authority of 42 U.S.C. 9902(2) will be used as
the basic criteria to establish eligibility for employment
authorization when economic necessity is a factor.
\149\ In the event an alien who has been granted deferral of
removal under the regulations implementing CAT was not issued or
does not have an order of supervision, the alien will need to make
arrangements with ICE to request issuance of or a copy of their
order of supervision.
---------------------------------------------------------------------------
Given that ICE is the primary DHS component with jurisdiction over
the
[[Page 34389]]
detention and removal of aliens with a final order of removal, ICE will
make the appropriate determination as to whether the alien's removal is
impracticable at the time of the alien's initial temporary release on
an order of supervision and thereafter when the alien must report to
ICE consistent with the conditions of release. If ICE determines, at
the time of the alien's initial release on an order of supervision or
when the alien checks in, in compliance with the conditions of the
alien's order of supervision, that all countries from which DHS has
requested travel documents at such time have failed to issue such
documents, ICE officers will annotate the Form I-220B to indicate that
the alien's removal is currently impracticable because of the reasons
stated above. Aliens with final orders of removal whom DHS has
temporarily released on an order of supervision and who are seeking
employment authorization based on this exception will not be eligible
for employment authorization unless ICE has made such a determination
and annotated the Form I-220B to indicate the alien's removal is
impracticable because of the reasons stated above.
DHS further proposes to allow aliens temporarily released on OSUP
who apply for a renewal of their employment authorization to have it
renewed only if the alien: (1) demonstrates that he or she meets all
requirements listed in proposed 8 CFR 274a.13(a)(3)(i), and (2)
establishes that he or she is employed by or seeking employment with a
U.S. employer who is a participant in good standing in E-Verify.\150\
See proposed 8 CFR 274a.13(a)(3)(ii).
---------------------------------------------------------------------------
\150\ See Section IV.A.3.
---------------------------------------------------------------------------
C. Aliens Granted Deferral of Removal Under the Convention Against
Torture Regulations
Once an alien has been granted withholding or deferral of removal,
DHS cannot remove an alien to the country from which removal has been
withheld or deferred unless withholding or deferral is terminated under
applicable regulatory procedures set out in 8 CFR 208.24, 1208.24,
208.17, 1208.17, or 1208.18(c).
Aliens who have been granted deferral of removal under the
regulations implementing CAT at 8 CFR 208.17 and 1208.17 and are
reporting on an OSUP may apply for employment authorization pursuant to
8 CFR 274a.12(c)(18). USCIS will retain the authority and discretion to
determine eligibility for employment authorization for those aliens
granted deferral of removal under the CAT regulations, as USCIS will
only grant employment authorization under 8 CFR 274a.12(c)(18) if such
aliens meet the eligibility criteria and also warrant a favorable
exercise of discretion. As discussed above, aliens applying for
employment authorization under the (c)(18) category must provide a
completed ICE Form I-220B, Order of Supervision, indicating that DHS
determined the alien could not be removed because every country
identified by the U.S. government as an alternate country of removal,
and every country the U.S. government has asked to accept the alien,
has failed to provide the appropriate travel documents. See proposed 8
CFR 274a.13(a)(3)(iii). DHS recognizes that there have been past
instances where aliens who were granted deferral of removal under the
regulations implementing CAT were granted employment authorization
without having to provide evidence of their release under an order of
supervision. DHS is now clarifying that aliens who have been granted
deferral of removal under the regulations implementing CAT are eligible
for employment authorization under 8 CFR 274a.12(c)(18) and must
satisfy all of the eligibility requirements of 8 CFR 274a.12(c)(18) to
qualify for employment authorization, including producing evidence of
their release under an order of supervision. Those aliens who have been
granted deferral of removal under the regulations implementing CAT
Article 3 and were granted employment authorization without having to
present evidence of their release under an order of supervision must
now, when seeking to renew their EAD, provide evidence of their release
under an order of supervision to demonstrate they are eligible for
employment authorization under the new 8 CFR 274a.12(c)(18). DHS is
aware that such aliens may claim they have engendered reliance
interests in not having to produce such evidence to be employment
authorized. However, the federal government's interests in ensuring
that aliens who have been ordered removed, but granted deferral of that
removal, are complying with their order of supervision and deserve a
favorable discretionary grant of employment authorization outweigh any
reliance interests that may have engendered from past practices or
grants of employment authorization without satisfying the proposed
requirements under 8 CFR 274a.12(c)(18). The annual average number of
aliens granted CAT deferral of removal in removal proceedings over a
10-fiscal-year period was 167, as reflected in Table IV.2 below. The
number of aliens granted CAT deferral from FY 2015 through FY 2024
remains low.
[[Page 34390]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.015
D. Discretionary Employment Authorization for Aliens Paroled Into the
United States
DHS is proposing to amend 8 CFR 274a.12(c)(11) to clearly state
that USCIS will only grant employment authorization under 8 CFR
274a.12(c)(11) if the alien warrants a favorable exercise of
discretion. See proposed 8 CFR 274a.12(c)(11)(ii). This discretionary
determination also includes but is not limited to consideration of the
alien's criminal history, including any criminal arrests, charges,
indictments, or convictions as discussed and described in Section IV.A
of this proposed rule. See also proposed 8 CFR 274a.13(a)(iv).
DHS is also proposing to amend 8 CFR 274a.12(c)(11) to require that
an alien paroled into the United States pursuant to section 212(d)(5)
of the Act, 8 U.S.C. 1182(d)(5), must also establish an economic
necessity for employment. See proposed 8 CFR 274a.12(c)(11)(i). Aliens
who are financially able to support themselves during the period of
parole will not be eligible for employment authorization. Limiting
employment authorization to aliens who meet the proposed requirements
aligns with the Administration's goals of strengthening protections for
American workers in the labor market and minimizes any risk of
disadvantaging American workers.
Additionally, as stated previously, these proposed revisions are
intended to serve as a disincentive for aliens paroled into the United
States who have significant criminal history from remaining in the
United States, as the aliens will not be able to lawfully work. If
these aliens do not have other financial means of sustaining their
lives in the United States and do not have pending immigration benefits
which may lead to a more permanent status, the aliens may not find it
possible or desirable to remain in the country.
In addition to the requirements that establish eligibility for an
initial grant of employment authorization under 8 CFR 274a.12(c)(11),
DHS is also proposing that aliens with parole who are seeking renewal
of their employment authorization under 8 CFR 274a.12(c)(11) must also
establish that they are employed by or seeking employment with a U.S.
employer who is a participant in good standing in E-Verify.\151\ See
proposed 8 CFR 274a.12(c)(11).
---------------------------------------------------------------------------
\151\ See Section IV.B.4 for a further discussion on E-Verify
and the definition of ``in good standing.''
---------------------------------------------------------------------------
E. Discretionary Employment Authorization for Aliens Granted Deferred
Action
DHS is proposing to amend 8 CFR 274a.12(c)(14) by restructuring it
to clearly state that USCIS will only grant employment authorization
under 8 CFR 274a.12(c)(14) if the alien merits a favorable exercise of
discretion and if the alien has established an economic necessity for
employment. See proposed 8 CFR 274a.12(c)(14). This discretionary
determination also includes consideration of the alien's criminal
history, including but not limited to any criminal arrests, charges,
indictments, or convictions as discussed and described in Section IV.A
of this proposed rule. See also proposed 8 CFR 274a.13(a)(iv).
Currently, USCIS only suggests an alien submit documentary evidence
of economic necessity, but documentary evidence will be required as
part of the form revisions accompanying the
[[Page 34391]]
proposed regulation. Information concerning what documentary evidence
the alien may use to establish economic necessity will be set forth in
form instructions and/or other sub-regulatory guidance. Aliens who are
financially able to support themselves during the period of deferred
action will not be eligible for employment authorization and an EAD.
Providing employment authorization to aliens who meet the proposed
requirements aligns with the Administration's goals of strengthening
protections for American workers in the labor market and minimizes any
risk of disadvantaging American workers. Additionally, these proposed
revisions are intended to serve as a disincentive for aliens with
deferred action who have significant criminal history from remaining in
the United States, as the aliens will not be able to lawfully work. For
example, such aliens who do not have other financial means of
sustaining their lives in the United States and who do not have pending
immigration benefits that may lead to a more permanent status may not
find it possible or desirable to remain in the country.
In addition to the requirements that establish eligibility for an
initial grant of employment authorization under 8 CFR 274a.12(c)(14),
DHS is proposing that an alien with deferred action seeking renewal of
his or her employment authorization under 8 CFR 274a.12(c)(14) must
also establish that he or she is employed by or seeking employment with
a U.S. employer who is a participant in good standing in E-Verify.\152\
See proposed 8 CFR 274a.12(c)(14). DHS is also limiting the validity
period for employment authorization under 8 CFR 274a.12(c)(14), whether
for an initial or renewal EAD, to a period not to exceed 1 year.
---------------------------------------------------------------------------
\152\ See Section IV.A.3 and Section III.B.8 for further
discussion on E-Verify and the definition of ``in good standing.''
---------------------------------------------------------------------------
F. Automatic Termination of Employment Authorization
DHS is also proposing amending 274a.14(a)(1) to expand the reasons
for automatic termination to include two additional reasons which would
automatically terminate employment authorization granted under 8 CFR
274a.12(c). First, this rule proposes that EADs granted under 8 CFR
274a.12(c) will automatically terminate when the alien receives an
administratively final order of removal under any removal provision
(e.g., INA 217, 235, 238, 240). For example, a removal order issued
following removal proceedings under section 240 of the INA, 8 U.S.C.
1229a, generally becomes administratively final upon dismissal of an
appeal by the Board of Immigration Appeals or upon the respondent's
waiver of appeal or expiration of the period allotted for filing an
appeal. See 8 CFR 1241.1.
Second, this rule proposes that EADs granted under 8 CFR 274a.12(c)
automatically terminate when the underlying basis for employment
authorization is terminated or denied. This can include DHS's
termination of status or denial of the application that was the basis
of the employment authorization (e.g., parole, deferred action). Notice
of the termination of the underlying status or benefit, denial of a
pending application, or having a final order of removal will result in
the automatic termination of any alien's employment authorization
granted under 8 CFR 274a.12(c). This is a simpler, clearer, and more
efficient process than revocation. As the alien's eligibility ceases,
so too would the employment authorization. This limits administrative
delays and clearly outlines when employment authorization ceases. While
employment authorization alone does not preclude removal, the automatic
termination assists the U.S. government in acting quickly to ensure
only those aliens who are eligible for employment authorization have it
in the event that imminent removal of an alien is necessary, such as in
the case of an alien who DHS has established poses a clear threat to
the safety of the American public.
If an alien believes that he or she has a separate basis for
employment authorization, he or she may apply for authorization on that
separate ground if his or her employment authorization is terminated
under this provision. For example, there could be an alien who has both
a pending asylum application as well as a pending petition for U
nonimmigrant status. If such an alien had an EAD under 8 CFR
274a.12(c)(8) due to the length of time his or her asylum application
was pending but later has that EAD terminated because USCIS denied the
asylum application, the alien may be able to later apply for an EAD
related to his or her U visa petition under 8 CFR 274a.12(c)(14).
G. Technical Edits and Edits for Clarity
Finally, DHS is proposing technical edits to update or remove
references to position titles, form numbers, mailing addresses, copies,
and office jurisdiction, edits to regulatory text for clarity, and
edits that remove unnecessary operational or procedural constraints
that have become technologically or organizationally outdated. As
discussed, DHS proposes to revise 8 CFR 241.4(j)(3), 241.5(a),
241.5(c), and 241.13(h)(3) to remove obsolete references to legacy INS
titles and replace them with the appropriate DHS component names, to
correctly reflect the DHS components with authority over OSUP and EAD
issuance, and to update and properly reference the employment
authorization regulations under 8 CFR part 274a. These proposed
amendments also clarify that the Secretary and the Director of ICE have
the flexibility to delegate authorities within ICE to appropriate
component heads, notwithstanding a particular title that has been or
may be assigned to a particular position.\153\ See proposed 8 CFR
241.4(j)(3), 241.5(a), 241.5(c), and 241.13(h)(3). DHS will update all
of 8 CFR part 241 in a future rulemaking to remove additional
references to obsolete INS titles consistent with the changes proposed
here.
---------------------------------------------------------------------------
\153\ After the functions of the former INS were transferred to
the Secretary pursuant to the HSA, Public Law107-296, sec. 441(c) (6
U.S.C. 251(2)), the functions were further delegated to component
heads. ICE now has primary authority over all enforcement actions
and USCIS has authority over adjudications of immigration benefits,
including issuance of EADs. See DHS Delegation No. 7030.2,
``Delegation of Authority to the Assistant Secretary for U.S.
Immigration and Customs Enforcement'' (Nov. 13, 2004); DHS
Delegation No. 0150.1, ``Delegation to the Bureau of Citizenship and
Immigration Services'' (June 5, 2003).
---------------------------------------------------------------------------
H. Reliance Interests of Certain Aliens With Current Employment
Authorization
In proposing these regulatory amendments, DHS has considered the
potential reliance interests that may have been engendered over time to
the aliens who may be affected by this proposed rule, including aliens
paroled into the United States temporarily for urgent humanitarian
reasons or significant public benefit, aliens granted deferred action,
aliens against whom a final order of removal exists and who are
temporarily released from custody on an order of supervision, OSUP, and
aliens with a criminal history. While the grant of employment
authorization is purely discretionary, temporary in nature, and for a
finite period, DHS emphasizes that the adjudication of the request for
employment authorization based on one of these discretionary categories
was always intended to be a decision separate from, for example,
whether the alien should be paroled or have deferred action. Nothing in
this proposed rule changes the particular facts and circumstances that
gave rise to the alien qualifying for a discretionary
[[Page 34392]]
EAD in one of these categories; that is, aliens on OSUP will remain on
OSUP, aliens on parole remain on parole, etc. Further, DHS would only
apply the proposed changes in this rule to employment authorization
applications received on or after the effective date of the rule, and
nothing in this rule authorizes the revocation or termination of
employment authorization for any alien who was eligible for an EAD
under the current regulations but would no longer be eligible when
these changes are finalized; any such aliens would retain their
employment authorization for the validity date printed thereon.
In general, to be granted discretionary employment authorization,
the alien must demonstrate eligibility and that he or she merits the
favorable exercise of discretion by USCIS. An alien is authorized
employment and issued an EAD only after USCIS approves an application
for employment authorization. Many discretionary employment
authorization categories are supposed to be temporary in nature and are
based upon a temporary immigration status or grant.\154\ For example,
parole and deferred action are temporary in nature, do not provide an
immigration status within the United States, are solely within DHS's
discretion, and may be terminated at any time. Once a grant of parole
or deferred action either ends or is terminated, there will no longer
be a basis for employment authorization. When the basis for an alien's
employment authorization ends, employment authorization also ends,
either at the conclusion of the validity period indicated on the EAD
(which generally mirrors the time of parole or deferred action) or
after termination under 8 CFR 274a.14(a) or revocation in accordance
with the procedures set forth in 8 CFR 274a.14(b). Similarly, the
period of time under which an alien with a final order of removal is
released on an order of supervision is intended to be temporary in
nature, and an alien should only expect to be released from custody on
an order of supervision for only the period of time that it takes to
ultimately effectuate the removal of the alien. These clear and
limiting conditions that are at the very nature of these three
immigration scenarios and any corresponding employment authorization
serve to attenuate any long-term expectations and interests among these
alien populations.\155\ Nonetheless, out an abundance of caution, DHS
has analyzed the effects of this rulemaking on any potential reliance
interests as discussed below.
---------------------------------------------------------------------------
\154\ See, e.g., 8 CFR 274a.12(c)(11) (aliens temporarily
paroled into the United States); 8 CFR 274a.12(c)(17)(ii) (domestic
servants temporarily visiting the United States).
\155\ See DHS v. Regents of the Univ. of Cal., 591 U.S. 1, 32
(2020) (noting that DHS could conclude that reliance is
``unjustified in light of the express limitations'' in relevant
immigration policy).
---------------------------------------------------------------------------
The estimated costs associated with filing Form I-765 and Form I-
765WS ranges from approximately $639.13 to $788.42 per alien.\156\ In
addition to the filing fee, the alien incurs the opportunity cost of
completing Form I-765 and Form I-765WS, estimated at 5.88 hours per
response,\157\ and, as proposed in this rule, if applying under Sec.
274a.12(c), submits their biometrics at a USCIS Application Support
Center for biometric screening and vetting by USCIS as part of the
review of their application.\158\ In general, these costs are not
significant, especially given the U.S. Government's interest in
determining who is permitted to work in the United States.
---------------------------------------------------------------------------
\156\ For more information and calculations, see Section V.A.8.
\157\ This proposed rule would increase the time burden of Form-
I-765 by 30 minutes (0.5 hours) for a total of 4.88 hours. This
proposed rule would also increase the time burden of Form I-765WS by
30 minutes (0.5 hours) for a total of 1 hour (0.5 hours to complete
the form and 0.5 hours to provide supplementary documentation).
However, alien workers that file under 8 CFR 274a.12(c)(14) are
already required to submit Form I-765WS, and due to the proposed
requirement that aliens provide supplementary documentation with the
Form I-765WS this proposed rule would increase the time burden of
Form I-765WS by 30 minutes (0.5 hours) for a total of 0.5 hours for
category (c)(14) alien workers. Thus, completing both forms will
have an estimated time burden of 5.88 hours for category (c)(18) and
(c)(11) alien workers and an estimated time burden of 5.38 hours for
category (c)(14) alien workers.
\158\ Biometrics submission is estimated to require 1.17 hours
per alien.
---------------------------------------------------------------------------
DHS recognizes that lost wages incurred by aliens who would no
longer be employment authorized under this proposed rule could be
viewed as significant. Nevertheless, as explained above, these aliens
were apprised of the temporary and discretionary nature of these
programs and that DHS may decline to exercise its discretion to grant
them employment authorization with each application. Moreover, USCIS
policy guidance for each employment eligibility category describes
\159\ that an alien may be ineligible for employment authorization for
a range of reasons, including if the alien fails to pass national
security and public safety vetting or is otherwise deemed not to
warrant a favorable exercise of discretion. In this rule, DHS is
proposing to limit the exercise of its discretionary authority to grant
employment authorization to aliens with a criminal history, such that
if an alien has been arrested for, charged with (without disposition),
indicted for, admits to committing, or has been convicted of certain
criminal acts it will be considered a negative discretionary factor
that will generally result in the denial of a request for employment
authorization, absent a countervailing public interest, which may
include assisting law enforcement activity in the United States. Such
factors are by their very nature negative; therefore, it would be
incongruous to argue that an alien has come to significantly rely on a
continued practice of disregarding, discounting, or re-labeling such
negative factors., Because USCIS may have not weighed such inherently
negative factors as heavily in the past, it does not follow that USCIS
would continue to do so in the future.
---------------------------------------------------------------------------
\159\ See 8 CFR 274a.12(a)(1); USCIS, ``Policy Manual,'' Volume
10, Employment Authorization, Part A, Employment Authorization
Policies and Procedures, Chapter 4, Adjudication, FN 8, https://www.uscis.gov/policy-manual/volume-10-part-a-chapter-4#footnote-8
(last updated Apr. 2, 2025).
---------------------------------------------------------------------------
While the changes proposed in this rule may result in aliens and
their families paying filing fees for ultimately denied applications
(including any fees for appeals or requests for reconsideration), lost
wages incurred by certain aliens who are no longer employment
authorized, having to change to a U.S. employer who is a participant in
good standing in E-Verify, or other related and ancillary economic
hardships, those aliens are aware that they do not have a permanent
immigration status, that their immigration situation is temporary, that
any corresponding employment authorization will end when the basis for
the employment authorization also ends, and that any future grant of
employment authorization is contingent upon a favorable exercise of
discretion by DHS. The aliens referenced in this proposed rule do not
have a ``right to work'' in the United States. Any grant of employment
authorization is purely discretionary, temporary in nature, and for a
finite period, thus making it necessary for each alien to submit a new
application requesting employment authorization each time the alien
would like a new period or renewal of employment authorization. DHS has
concluded that any such reliance interests that impacted aliens could
claim are not significant and are outweighed by the United States' own
interests and concerns as explained throughout this proposed rule.
While this proposed rule disrupts some settled practices and
expectations of certain aliens who may have previously relied on the
government's prior determinations to grant them employment
authorization, DHS is not
[[Page 34393]]
required to adhere to prior policies or regulations.\160\ DHS notes
that, fundamentally, the temporary and discretionary nature of these
three programs indicate that reliance on the continued assured
existence of employment authorization would be unwarranted.
---------------------------------------------------------------------------
\160\ See Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 221-22
(2016) (``Agencies are free to change their existing policies as
long as they provide a reasoned explanation for the change. . . .
But the agency must at least display awareness that it is changing
position and show that there are good reasons for the new policy. In
explaining its changed position, an agency must also be cognizant
that longstanding policies may have engendered serious reliance
interests that must be taken into account.'').
---------------------------------------------------------------------------
To the extent that the affected population has obtained employment
authorization or otherwise established new ties within the community
while in the United States, DHS notes these interests are qualitatively
less than any reliance interests that might be attributed to a
population with far greater interests, namely the Deferred Action for
Childhood Arrival (DACA) recipient population at issue in DHS v.
Regents of the Univ. of Cal.\161\ In Regents, the Supreme Court
reviewed whether DHS had appropriately considered the reliance
interests of DACA recipients when rescinding DACA.\162\ The reliance
interests of DACA recipients, all of whom had been present in the
United States for considerable periods of time, included their
enrollment in degree programs, beginning their careers, starting
businesses, and purchasing homes.\163\ As the Court noted, these
interests, though noteworthy, were not ``necessarily dispositive,'' and
``DHS may determine, in the particular context before it, that other
interests and policy concerns [in rescinding DACA] outweigh any
reliance interests.'' \164\ For the purposes of the actions announced
in this proposed rule, DHS notes the reliance interests of the affected
population will generally be far less than the population in Regents.
As stated above, the affected population would have known, and thus
must have considered, the limited and discretionary terms of their
eligibility for work authorization. Accordingly, their reliance
interests are outweighed by the U.S. government's strong interest in
strengthening protections for American workers, aligning its
discretionary authority to grant employment authorization with the
Administration's current immigration enforcement priorities, including
the prompt removal of aliens with removal orders, and rigorously
enforcing and administering the country's immigration laws.
---------------------------------------------------------------------------
\161\ 591 U.S. 1 (2020).
\162\ Id. at 31.
\163\ Id.
\164\ Id.
---------------------------------------------------------------------------
For aliens on OSUP, in instances where every country \165\ from
whom DHS has requested travel documents has failed to issue travel
documents, DHS created a specific exception to the bar to discretionary
employment authorization for that limited group of aliens. Furthermore,
DHS gave special consideration in this rule to those who fall under
this exception and live in a mixed household (that is, aliens with
certain U.S. citizen or lawfully permanent resident dependents). Under
the proposed regulatory framework, DHS will consider the alien's role
as a primary provider of economic support for a dependent U.S. citizen
or lawful permanent resident spouse, child(ren), and/or parent as a
positive factor in exercising its discretion to grant employment
authorization. Currently, 8 CFR 274a.12(c)(18)(ii) lists ``The
existence of a dependent spouse and/or children in the United States
who rely on the alien for support'' as a discretionary factor. This
proposed change does not intend to delete this factor but instead move
it to 8 CFR 274a.13(a)(3), expand it to include parents, and clarify
that the dependents must be U.S. citizens, lawful permanent residents,
or present in the United States in some other lawful status. DHS is
therefore acknowledging that those whose economic necessity includes
the support of certain types of dependents will be afforded
consideration.
---------------------------------------------------------------------------
\165\ See section 241(b) of the INA, 8 U.S.C. 1231(b), for
information on the countries to which arriving and other aliens may
be removed.
---------------------------------------------------------------------------
Additionally, for aliens on OSUP, section 241(h) of the INA, 8
U.S.C. 1231(h) specifically provides that ``[n]othing in this section
shall be construed to create any substantive or procedural right or
benefit that is legally enforceable by any party against the United
States or its agencies or officers or any other person.'' Nothing in
the statute, the current regulations, or this proposed rule creates any
right for an alien with a final order of removal to obtain employment
authorization. Accordingly, there is no implied or explicit right to
obtain employment authorization, and therefore reliance interests are
necessarily discounted accordingly based on the express terms of the
statute.
Third parties, including employers, landlords, and others, may also
have indirect reliance interests in the ability of these populations to
be employed; however, as stated previously, the immigration situation
of each population and their corresponding employment authorization are
temporary. Therefore, consideration of any reliance interest that may
have resulted must take into account the temporary availability and
eligibility of these populations to be employment authorized and is
therefore not considered significant. For the same reasons set forth
above, DHS finds the U.S. government's interest in these proposed
regulatory amendments described in this rule outweighs any reliance
interest of third parties.
Additionally, by going through notice and comment rulemaking, DHS
is providing notice that will allow these populations to mitigate any
reliance interest that may have resulted from being employment
authorized.
DHS welcomes comments on the reliance interests that may be
affected by this proposed rule.
I. Discussion on Alternatives to the Proposed Rule
DHS has carefully considered potential alternatives to the proposed
rule that would achieve the stated objectives while minimizing economic
impacts on affected individuals and entities. DHS has not identified
alternatives that would meet the policy goals of the proposed rule in a
manner consistent with applicable legal and operational requirements.
The proposed rule reflects DHS's best judgment on how to effectively
and efficiently achieve the stated objectives while balancing the
relevant policy considerations.
DHS recognizes the importance of public input in pointing out
potential alternatives that USCIS may not have identified during the
rulemaking process. Accordingly, DHS invites members of the public to
provide comments and suggestions for any significant alternatives that
could accomplish the stated objectives of the proposed rule.
Specifically, DHS seeks input on approaches that would achieve the same
policy goals while further minimizing economic impacts or addressing
any unintended consequences. Public feedback is critical to ensuring
that the final rule reflects a comprehensive understanding of its
potential impacts and incorporates viable alternatives, if available.
DHS requests comments and seeks alternatives from the public that will
accomplish the same objectives.
J. Severability
In issuing this proposed rule, it is DHS's intention that the
various
[[Page 34394]]
provisions would be considered severable from one another to the
greatest extent possible. This rule is structured in such a way that a
stay, injunction or vacatur of this rule could be narrowly tailored to
remedy the specific harm that a court may determine exists with a
specific provision. For example, if a court were to hold that only the
amendments to the regulations under 8 CFR 274a.12(c)(11) should be
enjoined or vacated for some reason, it is the intent of DHS that such
court would narrowly construe its decision and leave the remainder of
the rule in place with respect to all other covered aliens and
circumstances. This also holds true for all of the provisions proposed
in this rule, including 8 CFR 241.4, 241.5, 241.13, 274a.12, 274a.13,
and 274a.14. Each revision that DHS is proposing in this rule, in
particular those affecting discretionary employment authorization, is
intended to be considered as a separate provision that can stand on its
own and should be considered independently. DHS does recognize that the
revisions being proposed to 8 CFR 106.2(a)(44)(ii)(F) and
(a)(44)(iv)(D) are intertwined with and contingent upon the revisions
being proposed to 8 CFR 274a.12(a)(10).
V. Statutory and Regulatory Requirements
A. Executive Orders 12866 (Regulatory Planning and Review), 13563
(Improving Regulation and Regulatory Review), and 14192 (Unleashing
Prosperity Through Deregulation)
E.O.s 12866 and 13563 direct agencies to assess the costs and
benefits of available regulatory alternatives and, if a regulation is
necessary, to select regulatory approaches that maximize net benefits.
E.O. 13563 emphasizes the importance of quantifying costs and benefits,
reducing costs, harmonizing rules, and promoting flexibility.
E.O. 14192 directs agencies to significantly reduce the private
expenditures required to comply with Federal regulations and provides
that ``any new incremental costs associated with the new regulations
shall, to the extent permitted by law be offset by the elimination of
existing costs associated with at least 10 prior regulations.''
The Office of Management and Budget (OMB) has designated this rule
a ``significant regulatory action'' that is economically significant as
defined under section 3(f)(1) of E.O. 12866, because its annual effects
on the economy exceed $100 million in any year of the analysis.
Accordingly, the rule has been reviewed by the Office of Management and
Budget.
Additionally, this proposed rule is not an E.O. 14192 regulatory
action because it is being issued with respect to an immigration-
related function of the United States. The rule's primary direct
purpose is to implement or interpret the immigration laws of the United
States (as described in INA sec. 101(a)(17), 8 U.S.C. 1101(a)(17)) or
any other function performed by the U.S. Federal Government with
respect to aliens. See OMB Memorandum M-25-20, ``Guidance Implementing
Section 3 of Executive Order 14192, titled ``Unleashing Prosperity
Through Deregulation'' (Mar. 26, 2025).
1. Summary
DHS estimates that this proposed rule would result in a reduction
in the number of aliens granted deferred action, aliens granted parole,
and aliens with final orders of removal who are eligible for employment
authorization. This could result in lost earnings for aliens who are no
longer eligible for employment authorization, while also ensuring and
strengthening protections of American workers. The lost earnings could
result in a transfer of costs from the alien to his or her support
network, including family members, community groups, non-profits or
third-party organizations that provide for the alien, and any
dependents. In addition, DHS estimates that the proposed rule would
increase filing burdens for those aliens who remain eligible for
employment authorization, while ensuring economic necessity for
employment and permitting DHS to verify criminal history and
biometrically verify an alien's identity before issuing employment
authorization, and demonstrating to the satisfaction of USCIS that the
alien warrants a favorable exercise of discretion. U.S. businesses that
currently employ alien workers who would no longer be eligible to renew
their employment authorization under this proposed rule could incur new
costs due to employee turnover or compliance with the proposed E-Verify
requirement that would ensure aliens' authorization to work. Finally,
the proposed rule may result in a loss of tax revenue.
Under the proposed rule, DHS estimates and quantifies six types of
economic impacts, including: (1) potential lost earnings of alien
workers who may no longer be eligible for employment authorization; (2)
increased time burden for aliens to submit forms; (3) added time and
costs for aliens to submit biometrics; \166\ (4) labor turnover costs
that employers of alien workers could incur when EADs expire, are
revoked, or are not renewed; (5) costs to employers to enroll in and
maintain an E-Verify account as a participant in good standing to
retain alien workers applying for renewal EADs; and (6) potential
employment tax losses to the Federal government.
---------------------------------------------------------------------------
\166\ As discussed in the preamble, the proposed changes under 8
CFR 274a.13(a) will require all aliens applying for employment
authorization under Sec. 274a.12(c) to submit biometrics at an ASC.
DHS is concurrently proposing to amend its regulations concerning
the submissions and use of biometrics by an NPRM. The overlapping
policy objectives between the biometrics rule and this proposed rule
were considered when developing the populations and costs associated
with submitting biometrics under this proposed rule. As such, this
rule will only consider the impacts of biometrics submission for
those aliens that apply for employment authorization under Sec.
274a.12(c).
---------------------------------------------------------------------------
DHS estimates that some aliens would be ineligible for
discretionary EADs due to the proposed rule. However, DHS cannot
estimate this population with precision because of data constraints and
therefore relies on a range with an upper and lower bound. The
estimated 10-year undiscounted, direct costs of this proposed rule
would range from about $9.1 billion to $27.9 billion (Table V.36),
which includes costs associated with biometrics and added time burdens
for relevant filing forms as well as estimated costs should employers
not be able to find replacement labor for (c)(11), (c)(14), and (c)(18)
aliens who would become ineligible for employment authorization under
this rule. The estimated 10-year costs of the proposed rule annualized
at a 3 percent discount rate would range from 920.5 million to 2.8
billion, and at a 7 percent discount rate would range from $937.1
million to $2.9 billion. DHS estimates $2.9 billion (10-year
undiscounted) as the maximum transfer of employment taxes (namely
Medicare and Social Security) from employers and employees to the
Federal Government ($298.2 million annualized at 3 percent and $304.6
million annualized at 7 percent).
The potential benefits of the proposed rule would be qualitative.
First, U.S. citizen or lawful permanent resident workers, on the whole,
would be more likely to obtain jobs currently held by category (c)(11),
(c)(14), and (c)(18) alien workers since the proposed rule would reduce
employment authorization eligibility for these populations of aliens.
Second, the proposed rule may reduce the incentive for (c)(18) aliens
to remain in the United States after receiving a final order of
removal, which could reduce the amount of government resources expended
on enforcing final orders of removal for such aliens as well as
monitoring and
[[Page 34395]]
tracking aliens temporarily released on OSUP. According to a May 2025
DHS press release,\167\ the average cost to arrest, detain, and remove
an illegal alien is $17,121.\168\ Additional unquantifiable benefits
also include enabling DHS to determine an economic necessity for
employment, biometrically verifying an alien's identity before issuing
any employment authorization under Sec. 274a.12(c), vetting an alien's
biometrics against government databases for criminal activity, and
ensuring that aliens who renew their employment authorization have
their employment authorization verified by their employer, thereby
increasing the integrity of the immigration system.
---------------------------------------------------------------------------
\167\ ``DHS Announces Historic Travel Assistance and Stipend for
Voluntary Self-Deportation'' (release date May 5, 2025), https://www.dhs.gov/news/2025/05/05/dhs-announces-historic-travel-assistance-and-stipend-voluntary-self-deportation, (last viewed Nov.
26, 2025).
\168\ It is important to note that costs can vary significantly
based on individual circumstances, such as the method of removal,
the alien's location, detention costs, transportation expenses,
legal proceedings, and other logistical considerations.
---------------------------------------------------------------------------
Table V.1 shows the summary of impacts of the proposed regulatory
changes and the associated estimated costs and benefits.\169\
---------------------------------------------------------------------------
\169\ For a complete summary of regulatory changes and
additional guidance in this proposed rule, please see Section IV,
``Discussion of Proposed Rule.''
---------------------------------------------------------------------------
[[Page 34396]]
BILLING CODE 9111-97-P
[GRAPHIC] [TIFF OMITTED] TP05JN26.016
[[Page 34397]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.017
[[Page 34398]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.018
[[Page 34399]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.019
[[Page 34400]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.020
[[Page 34401]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.021
[[Page 34402]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.022
BILLING CODE 9111-97-C
The impacts of reducing the number of aliens with final orders of
removal, aliens granted deferred action, and aliens granted parole who
are eligible for employment authorization include both potential
distributional impacts (transfers) and costs. USCIS uses the lost
compensation to aliens who are no longer eligible for employment
authorization as a measure of the impact of this change--either as
distributional impacts (transfers) from these aliens to others or as a
proxy for businesses' cost for lost productivity. If all companies can
easily find reasonable labor substitutes for the positions the aliens
would have otherwise filled, DHS estimates a maximum of $2.8 billion
(annualized at a 3 percent discount rate) would be transferred from
these workers to others in the labor force (or induced back into the
labor force); $2.9 billion (annualized at a 7 percent discount rate)
(Table V.2(A)).\171\ Under this scenario, there would be no Federal
employment tax losses.\172\ Conversely, if companies are unable to find
reasonable labor substitutes for the positions the aliens would have
filled then a maximum of $2.8 billion (annualized at a 3 percent
discount rate) or $2.9 billion (annualized at a 7 percent discount
rate) is the estimated monetized cost in lost productivity, and $0 is
the estimated monetized transfers from these aliens to other workers.
In addition, under this scenario where jobs would go unfilled, there
would be a loss of employment taxes to the Federal Government. USCIS
estimates $298.2 million (annualized at a 3 percent discount rate) or
$304.6 million (annualized at a 7 percent discount rate) as the maximum
reduction in transfers of employment taxes from companies and employees
to the Federal Government.
---------------------------------------------------------------------------
\170\ All other categories include: (c)(1)-(10), (c)(12),
(c)(16), (c)(17), (c)(19)-(22), (c)(24)-(26), (c)(33)-(36), and
(c)(40).
\171\ We note that DHS does not know the portion of overall
impacts of this rule that are transfers or costs and assume that, if
companies can find replacement labor for the positions the (c)(11),
(c)(14), or (c)(18) alien worker would have filled, removing
employment authorization from these aliens would result in primarily
distributional effects in the form of transfers from aliens to
others that are currently in the U.S. labor force (or workers
induced to return to the labor market). Please see Section V.A.5.
``Costs to Employers'' for more information.
\172\ This scenario assumes that all the labor substitutes for
the positions the aliens would have filled were previously
unemployed. If a labor substitute was previously employed, then
there could be a potential tax loss stemming from the position that
was vacated.
---------------------------------------------------------------------------
DHS believes the two scenarios described above represent the
uncertainty in how employers will be able to respond given labor market
conditions. DHS estimated endpoints for the range of monetized impacts
resulting from the provisions that affect employment eligibility for
aliens with final orders of removal, aliens granted deferred action,
and aliens granted parole. Effects of this rulemaking would depend in
part on the interaction of a number of complex variables that are
constantly in flux, including national, state, and local labor market
conditions, economic and business factors, the type of occupations and
skills involved, and the availability of similarly skilled workers. DHS
acknowledges there is extensive literature on the impacts of
immigration on labor markets.\173\ DHS welcomes public comment on the
estimates presented in these scenarios and on the validity of the
assumptions on affected jobs being backfilled.
---------------------------------------------------------------------------
\173\ See Edo, A. (2019). The Impact of Immigration on the Labor
Market. Journal of Economic Surveys, Vol. 33(3), pp. 922-948.
---------------------------------------------------------------------------
There are other costs of the rule, including E-Verify, biometrics,
labor turnover, and additional form burdens. These other costs exist
under both scenarios described above, and thus $4.2 million is the
minimum cost of the rule (annualized at a 3 percent discount rate or
$4.4 million (annualized at a 7 percent discount rate).
The range of impacts described by the scenarios above, plus the
consideration of the other costs, are summarized in Table V.2. The
primary estimate shown in Table V.2 is the median point between the
minimum estimate and the maximum estimate for each scenario.\174\
---------------------------------------------------------------------------
\174\ Example calculations at 7 percent: The median for
compensation (transfer) of $0 and $2,877,152,531 = $1,443,576,266.
The median for taxes (transfer) of $0 and $304,644,371 =
$152,322,185. The median for biometrics (cost) of $3,440,598 and
$8,425,002 = $5,932,800. The median for forms (cost) of $934,778 and
$2,622,217 = $1,778,497. The median for lost productivity (cost) of
$0 and $2,887,152,531 = $1,443,576,266. The median for total costs
of $4,375,376 and $2,898,199,750 = 1,451,287,563.
---------------------------------------------------------------------------
BILLING CODE 9111-97-P
[[Page 34403]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.023
[[Page 34404]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.024
In addition, Table V.3 presents the prepared accounting statement,
as required by OMB Circular A-4, showing the costs associated with this
proposed regulation.\175\ Note that under costs, the primary estimates
provided in the accounting statement are the calculated midpoint based
on the minimum cost from the scenario that all aliens are replaced with
other workers and the maximum cost from the scenario that no aliens are
replaced with other workers (scenarios presented in Tables V.2(A) and
(B)).
---------------------------------------------------------------------------
\175\ OMB, ``Circular A-4'' (Sept. 17, 2003).
---------------------------------------------------------------------------
[[Page 34405]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.025
[[Page 34406]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.026
BILLING CODE 9111-97-C
2. Background and Purpose of the Proposed Rule
USCIS is drafting regulations to align its discretionary authority
to grant employment authorization with the Administration's current
immigration enforcement priorities,\176\ including the prompt removal
of aliens with removal orders through the rigorous enforcement and
administration of our immigration laws.
---------------------------------------------------------------------------
\176\ See E.O. 14159, Protecting the American People Against
Invasion, secs. 2, 4, and 16(c), 90 FR 8443 (Jan. 29, 2025).
---------------------------------------------------------------------------
a. Discretionary Employment Authorization for Aliens on OSUP ((c)(18))
As discussed, ICE works to promptly remove aliens subject to a
final order of removal from the United States. Removal operations
require integrated coordination, management, and facilitation efforts.
By law, DHS is required to remove or release a detained alien ordered
removed within a period of 90 days (``removal period'') after the
issuance of a final order of removal.\177\ Furthermore, the law
expressly prohibits DHS from releasing an alien during the removal
period if the alien was ordered removed based on criminal grounds and/
or terrorist activities.\178\ For aliens detained beyond the removal
period, DHS must comply with Zadvydas (discussed throughout this
proposed rule),\179\ which held that an alien with a final order of
removal cannot be kept in detention (unless special circumstances
exist) once it has been determined that there is not a ``significant
likelihood of removal in the reasonably foreseeable future.''\180\
[[Page 34407]]
Aliens with final orders of removal who are released from ICE custody
under section 241(a)(3) of the INA, 8 U.S.C. 1231(a)(3), are subject to
supervision.\181\
---------------------------------------------------------------------------
\177\ INA sec. 241(a)(1), 8 U.S.C. 1231(a)(1). The 90-day period
is extended if the alien fails or refuses to make timely application
in good faith for travel or other documents necessary to the alien's
departure or conspires or acts to prevent removal.
\178\ INA sec. 241(a)(2), 8 U.S.C. 1231(a)(2).
\179\ 533 U.S. 678 (2001).
\180\ Id.
\181\ INA sec. 241(a)(3), 8 U.S.C. 1231(a)(2). See Section
III.C. When releasing an alien who has been ordered removed on OSUP,
ICE is not necessarily determining that all applicable foreign
countries are refusing to accept the alien. ICE's efforts to
effectuate removal are always ongoing, and even after an alien is
temporarily released on OSUP, ICE may take the alien back into
custody and remove the alien from the United States.
---------------------------------------------------------------------------
As noted above, DHS currently extends eligibility for employment
authorization under 8 CFR 274a.12(c)(18) to aliens who have been
ordered removed and have been temporarily released from detention under
section 241(a)(3) of the INA, 8 U.S.C. 1231(a)(3), on an order of
supervision. See 8 CFR 241.5(c), 274a.12(c)(18).
As explained in detail in the preamble, DHS has determined that
employment authorization should be limited to a subset of aliens
ordered removed and temporarily released on OSUP to better align with
the DHS enforcement mission and the Administration's current
immigration enforcement priorities, including those outlined in E.O.
14159, and efforts to strengthen protections of American workers.
Further, DHS intends to require aliens who qualify under this
exception to establish an economic necessity for employment. The
proposed regulatory change will require that aliens complete and submit
Form I-765WS, as well as submit documentary evidence \182\ to support
their claim of economic necessity for employment.
---------------------------------------------------------------------------
\182\ Supporting evidence includes, but is not limited to, pay
stubs, an Internal Revenue Service (IRS) transcript for the most
recent tax year, Form W-2 series or Form 1099 series for the most
recent tax year, evidence of the value of the alien's assets such as
the appraised value of a home, utility bills, credit card
statements, bank statements, and evidence of claimed income,
including alimony, child support, and dividends.
---------------------------------------------------------------------------
DHS proposes to apply changes made by this rule only to initial and
renewal applications under 8 CFR 274a.12(c)(18) filed on or after the
effective date of the rule, if finalized. USCIS would not apply the
changes made by this rule to any pending application for a replacement
EAD received before the effective date of the rule, if finalized, or to
new applications for replacement EADs, because such adjudications are
not considered a new grant of employment authorization but a
replacement of an EAD based on a previously authorized period.
b. Discretionary Employment Authorization for Aliens Granted Deferred
Action ((c)(14))
DHS currently extends eligibility for employment authorization to
aliens who have been granted deferred action under the (c)(14)
category. See 8 CFR 274a.12(c)(14). In order for such aliens to obtain
employment authorization, the alien must file Form I-765 accompanied by
required documentation and the proper fee.\183\ If USCIS approves the
alien's Form I-765 under the (c)(14) category, the validity period
generally runs for the same period of time as the grant of deferred
action and will end on the end date of the period of deferred
action.\184\ As explained in detail in the preamble, DHS has determined
and is proposing that employment authorization should be limited for
aliens granted deferred action not to exceed one year.
---------------------------------------------------------------------------
\183\ The recently promulgated fee rule updated the fee for Form
I-765 to $470 for online filing and $520 for paper filing. See 89 FR
6194 (Jan. 31, 2024) (Fee Rule).
\184\ Please see the ``List of Subject and Regulatory
Amendments'' section under 274a.13.
---------------------------------------------------------------------------
DHS proposes to apply changes made by this rule only to initial and
renewal applications under 8 CFR 274a.12(c)(14) filed on or after the
effective date of the rule, if finalized. USCIS would not apply the
changes made by this rule, if finalized, to any pending application for
a replacement EAD received before the effective date of the rule or to
new applications for replacement EADs, because such adjudications are
not considered a new grant of employment authorization but a
replacement of an EAD based on a previously authorized period.
c. Discretionary Employment Authorization for Aliens Paroled Into the
United States ((c)(11))
Aliens who are applicants for admission may request to be paroled
into the country based on urgent humanitarian reasons or a significant
public benefit. Parole allows an alien who may be inadmissible or
otherwise ineligible for admission into the United States to be paroled
into the country for a temporary period of time. Generally, parole ends
upon an expiration date or when a parolee departs the United States or
acquires an immigration status, whichever occurs first. With some
exceptions, DHS currently extends eligibility for employment
authorization to aliens who have been granted parole under the (c)(11)
category. See 8 CFR 274a.12(c)(11). In order for such aliens to obtain
employment authorization, the alien must file Form I-765 accompanied by
required documentation and the proper fee.\185\ If USCIS approves an
alien's Form I-765 under the (c)(11) category, the validity period for
employment authorization will be the shorter of either the duration of
the alien's parole or one year.\186\ As explained in detail in the
preamble, DHS has determined that employment authorization should be
further limited for aliens granted parole to better align with the DHS
enforcement mission and the Administration's current immigration
enforcement priorities, including those outlined in E.O. 14159, and
efforts to strengthen protections of American workers.
---------------------------------------------------------------------------
\185\ The recently promulgated fee rule updated the fee for Form
I-765 to $470 for online filing and $520 for paper filing. See 89 FR
6194 (Jan. 31, 2024) (Fee Rule).
\186\ See Section 100003(b)(1) of One Big Beautiful Bill Act,
Immigration and Law Enforcement Matters, Part I, Title X of Public
Law 119-21, 139 Stat. 72 (July 4, 2025); 8 U.S.C. 1803(b)(1)
(defining the validity period for initial employment authorization
of parolees to a period of 1 year or for the duration of the alien's
parole, whichever is shorter).
---------------------------------------------------------------------------
DHS proposes to apply changes made by this rule only to initial and
renewal applications under 8 CFR 274a.12(c)(11) filed on or after the
effective date of the rule, if finalized. USCIS would not apply the
changes made by this rule to any pending application for a replacement
EAD received before the effective date of the rule, if finalized, or to
new applications for replacement EADs because such adjudications are
not considered a new grant of employment authorization but a
replacement of an EAD based on a previously authorized period.
3. Population
The populations that could be affected by this proposed rule
consist of: aliens who have a final order of removal but who are
temporarily released from custody on an order of supervision and are
employment authorized under the (c)(18) category; aliens granted
deferred action and are employment authorized under the (c)(14)
category; and aliens granted parole into the country based on urgent
humanitarian reasons or a significant public benefit and are employment
authorized under the (c)(11) category.
As noted in the preamble, aliens who have been arrested for,
indicted for, or convicted of any criminal act, have admitted to
committing a violent or dangerous crime, or for whom evidence exists
that the alien is a member of a gang or terrorist organization do not
warrant a favorable exercise of discretion, unless there are
significant countervailing public interest, which
[[Page 34408]]
may include the presence of the alien in the United States to assist
law enforcement activity in the United States. These proposed changes
will not only affect the (c)(11), (c)(14), and (c)(18) populations, but
all discretionary EAD populations,\187\ excluding (c)(8),\188\ (c)(19),
(c)(20), (c)(22), and (c)(24). While some aliens, such as those
released on orders of supervision, are known convicted criminals, DHS
is unable to precisely estimate the number of aliens who could
potentially be denied employment authorization as a matter of
discretion should this proposed rule be promulgated as a final rule.
The discretionary analysis is case-specific and typically assessed
after an officer has determined that the alien meets all applicable
threshold eligibility requirements. It involves the review of all
relevant, specific facts and circumstances in an individual case and
weighing all the positive factors present in a particular case against
any negative factors in the totality of the record. Further, DHS does
not know the number of aliens who would be denied as a matter of
discretion because of subsequent criminal convictions or gang/terrorist
organization affiliations. For these reasons, we cannot estimate how
many aliens would be denied as a matter of discretion based on these
factors. However, DHS recognizes that there would be similar costs,
which are further discussed in this analysis, for those aliens that are
no longer found eligible for employment authorization under a
discretionary EAD based on criminal history.
---------------------------------------------------------------------------
\187\ All EAD categories that would be affected by these
proposed changes include: (c)(1)-(12), (c)(14), (c)(16)-(18),
(c)(26), (c)(33)-(36), and (c)(40).
\188\ As noted elsewhere in this rule, there is concurrent
rulemaking on (c)(8) EADs; as such, changes to the (c)(8) category
will be in the Asylum EAD Reform Rule only.
---------------------------------------------------------------------------
DHS estimates the affected population based on historical data for
FY 2015 through FY 2024. The projected population estimates are
developed under two scenarios: (1) without this rule and (2) with this
rule. The two scenarios will later be used in the ``Monetized Impact
Analysis'' section to estimate the economic impact of this proposed
rule.
a. Discretionary Employment Authorization for Aliens on OSUP ((c)(18))
DHS estimates the affected population based on historical data for
FY 2015 through FY 2024. Table V.4 shows the annual receipts and
approvals for initial and renewal applications for employment
authorization using Form I-765 under the (c)(18) category for aliens
temporarily released on an order of supervision for FY 2015 through FY
2024.
[GRAPHIC] [TIFF OMITTED] TP05JN26.027
[[Page 34409]]
The number of initial receipts of employment authorization over the
period FY 2015 through FY 2024 decreased from 9,632 in FY 2015 through
4,421 in FY 2018 (a period low), then increased to 10,435 in FY 2022 (a
period high), and subsequently, decreased to 5,228 in FY 2024. The
number of initial approvals of employment authorization decreased from
a high of 8,745 in FY 2015 to a low of 3,210 in FY 2021, then increased
to 4,420 in FY 2024. The number of renewal receipts of employment
authorization decreased from 22,816 in FY 2015 to 19,315 in FY 2019 (a
period low) before increasing to 27,840 FY 2023 (a period high) and
subsequently decreased to 27,433 in FY 2024. The number of renewal
approvals for employment authorization decreased from 21,241 in FY 2015
to a low of 17,220 in FY 2021 before increasing again to a high of
27,796 in FY 2024. While DHS estimates the proposed rule would reduce
the number of aliens eligible for employment authorization and
anticipates a decline in (c)(18) receipts and approvals for both
initial and renewal applications, DHS is unable to determine the
magnitude of decline for reasons discussed further in this analysis.
Table V.5 shows annual growth rates of initial and renewal receipts
based on the receipts presented in Table V.4. For initial receipts, the
5-year annual growth rate for the period FY 2015 through FY 2019
decreased 9.8 percent; the 5-year annual growth rate for the period
2020 through 2024 decreased 3.7 percent; and the 10-year annual growth
rate for the period FY 2015 through FY 2024 decreased 5.9 percent.\189\
For renewal receipts, the 5-year annual growth rate for the period FY
2015 through FY 2019 decreased 3.3 percent; the 5-year annual growth
rate for the period 2020 through 2024 increased 3.8 percent; and the
10-year annual growth rate for the period FY 2015 through FY 2024
increased 1.9 percent.\190\ DHS uses these growth rates to estimate the
projected number of initial and renewal receipts under the two
scenarios with and without this rule.
---------------------------------------------------------------------------
\189\ Calculation:
(((FY 2019 Initial Receipts 5,765 / FY 2015 Initial Receipts
9,632) [caret] (1 / 5))-1) = -0.098;
(((FY 2024 Initial Receipts 5,228 / FY 2020 Initial Receipts
6,312) [caret] (1 / 5))-1) = -0.037;
(((FY 2024 Initial Receipts 5,228 / FY 2015 Initial Receipts
9,632) [caret] (1 / 10))-1) = -0.059.
\190\ Calculations:
(((FY 2019 Renewal Receipts 19,315 / FY 2015 Renewal Receipts
22,816) [caret] (1 / 5))-1) =-0.033;
(((FY 2024 Renewal Receipts 27,433 / FY 2020 Renewal Receipts
22,715) [caret] (1 / 5))-1) = 0.038;
(((FY 2024 Renewal Receipts 27,433 / FY 2015 Renewal Receipts
22,816) [caret] (1 / 10))-1) = 0.019.
[GRAPHIC] [TIFF OMITTED] TP05JN26.028
To estimate the projected number of initial receipts without this
rule, DHS chooses to use the declining growth rate of -3.7 percent for
initial receipts for the period FY 2020 through FY 2024. By choosing
this more conservative annual growth rate, the estimated projection
will be higher for initial receipts, which would lead to a greater
range of potential cost estimates.
To estimate the projected number of renewal receipts without this
rule, DHS acknowledges that aliens temporarily released on OSUP have
removal orders and are deported from the United States on an ongoing
basis. Additionally, the declining growth rate for initial receipts
would, at some point, result in either a plateau or a decrease for
renewal receipts. Therefore, we do not find it reasonable to use an
increasing annual growth rate to estimate the projected number of
renewal receipts. In this analysis, we use the 5-year average annual
growth rate of -3.3 percent for the period FY 2015 through FY 2019
(Table V.5).
Next, in Table V.6, we calculate the average number of receipts and
approvals, along with approval rates for initial and renewal
receipts.\191\ The approval rate for initials for FY 2015 through FY
2019 is 83.6 percent, for FY 2020 through FY 2024 is 64.5 percent, and
for FY 2015 through FY 2024 is 73.7 percent. The approval rate for
renewals for FY 2015 through FY 2019 is 94.2 percent, for FY 2020
through FY 2024 is 93.9 percent, and for FY 2015 through FY 2024 is
94.0 percent.
---------------------------------------------------------------------------
\191\ Table V.6 Calculations:
FY 2015 through FY2019: Average Initial Receipts = (9,632 +
8,667 + 6,236 + 4,421 + 5,765) / 5 = 6,944; Average Initial
Approvals = (8,745 + 7,506 + 5,274 + 3,433 + 4,064)) / 5 = 5,804;
Initial Approval Rate = 5,804 / 6,944 = 0.836; Average Renewal
Receipts = (22,816 + 26,107 + 26,351 + 20,646 + 19,315) / 5 =
23,047; Average Renewal Approvals = (21,241 + 24,474 + 21,274 +
20,171 + 21,344) / 5 = 21,701; Renewal Approval Rate = 21,701 /
23,047 = 0.942.
FY 2020 through FY 2024: Average Initial Receipts = (6,312 +
8,758 + 10,435 + 6,093 + 5,228) / 5 = 7,365; Average Initial
Approvals = (4,278 + 3,210 + 7,717 + 4,109 + 4,420) / 5 = 4,747;
Initial Approval Rate = 4,747 / 7,365 = 0.645; Average Renewal
Receipts = (22,715 + 23,450 + 21,200 + 27,840 + 27,433) / 5 =
24,528; Average Renewal Approvals = (18,983 + 17,220 + 26,759 +
24,448 + 27,796) / 5 = 23,041; Renewal Approval Rate = 23,041 /
24,528 = 0.940.
FY 2015 through FY 2024: Average Initial Receipts = (9,632 +
8,667 + 6,236 + 4,421 + 5,765 + 6,312 + 8,758 + 10,435 + 6,093 +
5,228) / 10 = 7,155; Average Initial Approvals = (8,745 + 7,506 +
5,274 + 3,433 + 4,064 + 4,278 + 3,210 + 7,717 + 4,109 + 4,420) / 10
= 5,276; Initial Approval Rate = 5,276 / 7,155 = 0.737; Average
Renewal Receipts = (22,816 + 26,107 + 26,351 + 20,646 + 19,315 +
22,715 + 23,450 + 21,200 + 27,840 + 27,433) / 10 = 23,787; Average
Renewal Approvals = (21,241 + 24,474 + 21,274 + 20,171 + 21,344 +
18,983 + 17,220 + 26,759 + 24,448 + 27,796) / 10 = 22,371; Renewal
Approval Rate = 22,371 / 23,787 = 0.940.
---------------------------------------------------------------------------
[[Page 34410]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.029
To project the number of initial approvals without this rule in
Table V.7, DHS chooses the more conservative initial approval rate by
choosing the 5-year average annual rate of 83.6 percent from FY 2015
through FY 2019. Moreover, to project the number of renewal approvals,
DHS chooses the more conservative renewal approval rate by choosing the
5-year annual rate of 94.2 percent from FY 2015 through FY 2019.
However, we note that the average renewal approval rate over the three
periods analyzed in Table V.6 are within a relatively small range of
0.3 percentage (94.2 percent minus 93.9 percent). By choosing these
annual approval rates, the projections under the ``without the rule
scenario'' will be higher for initial and renewal approvals, which will
lead to a greater range of potential cost estimates.
To project FY 2025 initial and renewal receipts, we estimate the
population in accordance with the administration's current immigration
enforcement priorities. The average initial and renewal receipts from
FY 2015 through FY 2019 fall more in line with these directives and are
reasonable estimates for FY 2025. To project FY 2025 initial receipts,
the 5-year average annual number of initial receipts of 6,944 from FY
2015 through FY 2019 is used. The projected FY 2025 initial approvals
are calculated by multiplying the average initial approval rate of 83.6
percent (Table V.6) by the estimated number of initial receipts from FY
2025 (6,944), which equals 5,805 (Table V.7).
To project FY 2026 initial receipts, the 5-year average annual
growth rate of -3.7 percent from FY 2020 through FY 2024 (Table V.5) is
multiplied by the number of projected initial receipts from FY 2025
(6,944), which equals -257 (rounded). Subtracting 257 from the
projected initial receipts for FY 2025 equals 6,687 (Table V.7).\192\
The FY 2026 initial approvals are calculated by multiplying the same
average initial approval rate of 83.6 percent by the estimated number
of initial receipts from FY 2026 (6,687), which equals 5,590 (rounded).
The process was then repeated for subsequent years.
---------------------------------------------------------------------------
\192\ Calculation: 6,944 (FY 2025 estimated initial receipts) x
-0.0037 (5-year annual growth rate FY 2020 to FY 2024) + 6,944 (FY
2025 estimated initial receipts) = 6,687 estimated FY 2026 initial
receipts.
---------------------------------------------------------------------------
To project FY 2025 renewal receipts, we use the 5-year average
annual growth rate of -3.3 percent for the period FY 2015 through FY
2019 (Table V.5).\193\ The FY 2025 renewal approvals are calculated by
multiplying the average renewal approval rate of 94.2 percent (Table
V.6) by the estimated number of renewal receipts from FY 2025 (23,047),
which equals 21,710 (Table V.7).
---------------------------------------------------------------------------
\193\ Calculation: 22,816 (FY 2015 renewal receipts) + 26,107
(FY 2016 renewal receipts) + 26,351 (FY 2017 renewal receipts) +
20,646 (FY 2018 renewal receipts) + 19,315 (FY 2019 renewal
receipts) / 5 = 23,047 estimated FY 2025 renewal receipts.
---------------------------------------------------------------------------
To project FY 2026 renewal receipts, the more conservative 5-year
annual growth rate of -3.3 percent from FY 2015 through FY 2019 (Table
V.5) is multiplied by the number of projected renewal receipts from FY
2025 (23,047), which equals -761 (rounded). Subtracting 761 from the
projected renewal receipts for FY 2025 equals 22,286 (Table V.7).\194\
The projected number of FY 2026 renewal approvals are calculated by
multiplying the average renewal approval rate of 94.2 percent by the
estimated number of renewal receipts from FY 2026 (22,286), which
equals 20,993 (rounded). The process was then repeated for subsequent
years. These projections are shown in Table V.7.
---------------------------------------------------------------------------
\194\ Calculation: 23,047 (FY 2025 estimated renewal receipts) x
-0.033 (10-year annual growth rate FY 2015 to FY 2019) + 23,047 (FY
2025 estimated renewal receipts) = 22,286 estimated FY 2026 renewal
receipts.
---------------------------------------------------------------------------
[[Page 34411]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.030
This proposed rule would eliminate the eligibility for employment
authorization for aliens temporarily released on OSUP with an exception
of aliens for whom DHS has determined removal is impracticable because
all countries from which DHS has requested travel documents have failed
to issue such documents. To estimate the number of aliens whose removal
is impracticable, USCIS obtained data from ICE over the last 10 fiscal
years on the number of aliens released from custody who have been
unable to obtain travel documents. Table V.8 shows the number of aliens
temporarily released on OSUP denied a travel document in the
corresponding fiscal year. DHS estimates this proposed rule would
result in fewer aliens temporarily released on OSUP who are eligible
for employment authorization and would result in a maximum of 322
aliens remaining eligible for employment authorization under the
exception.
[GRAPHIC] [TIFF OMITTED] TP05JN26.031
Aliens who have been granted deferral of removal under the
regulations implementing CAT at 8 CFR 208.17 and 1208.17 will be
eligible for employment authorization pursuant to 8 CFR 274a.12(c)(18).
Aliens granted CAT deferral of removal continue to have their removal
deferred until it is terminated.\195\ Table V.9 shows the number of CAT
cases granted deferral of
[[Page 34412]]
removal for FY 2015 through FY 2024. Since FY 2015, the number of CAT
cases granted deferral of removal has trended upward reaching a high of
316 cases in FY 2023 before decreasing to 245 cases in FY 2024. The
annual number of cases is approximately 167 based on a 10-year
average.\196\
---------------------------------------------------------------------------
\195\ See 8 CFR 208.17, 1208.17, 208.24, and 1208.24.
\196\ This analysis assumes that all aliens who are granted CAT
deferral of removal would enter the labor market.
[GRAPHIC] [TIFF OMITTED] TP05JN26.032
Based on the exception regarding aliens for whom DHS has determined
removal is impracticable because all countries from which DHS has
requested travel documents have affirmatively declined to issue such
documents (322), and the grant of CAT deferral of removal exception
(167), DHS estimates an upper bound estimate for initial (c)(18)
category approvals that would remain eligible for employment
authorization under this proposed rule in the future is 489 annually
(322 plus 167). DHS recognizes an upper bound estimate does not account
for the number of aliens who would no longer be eligible due to
subsequent convictions. DHS also does not know how many aliens would be
eligible under the economic necessity requirement or how many would
apply for or be denied for other considerations, such as the alien's
compliance with the order of supervision conditions and the alien's
criminal history, including but not limited to any criminal arrests,
charges, indictments, or convictions subsequent to the alien's release
from custody on an order of supervision. DHS recognizes if any of the
322 potential initial (c)(18) category approvals who may fall under the
exception do not apply for work authorization or are denied employment
authorization that the upper bound estimate of 489 would be an
overestimate. Thus, the upper bound estimate of 489 we use assumes that
100 percent of aliens temporarily released on OSUP who have either been
unable to obtain travel documents or who have been granted deferral of
removal under the regulations implementing CAT Article 3, would remain
employment authorization eligible under this proposed rule.
Additionally, we use a lower bound estimate of 167 (Table V.10(A)
column A) to capture the populations of aliens who have been granted
deferral of removal under the regulations implementing CAT at 8 CFR
208.17 and 1208.17 and will be eligible for employment authorization
pursuant to 8 CFR 274a.12(c)(18).\197\ DHS emphasizes that while aliens
who are granted CAT deferral of removal are eligible for employment
authorization, USCIS would only grant employment authorization under 8
CFR 274a.12(c)(18) if the alien warrants a favorable exercise of
discretion. DHS recognizes if any of the 167 potential (c)(18) category
approvals who may fall under the grant of CAT deferral of removal
exception do not apply for
[[Page 34413]]
work authorization or are denied employment authorization that the
lower bound estimate of 167 would be an overestimate. Thus, the lower
bound estimate of 167 assumes that 100 percent of aliens that fall
under the grant of CAT deferral of removal exception would apply for
work authorization and be approved under this proposed rule.
---------------------------------------------------------------------------
\197\ The population of aliens who have been granted deferral of
removal under the regulations implementing CAT serves as a
reasonable lower bound estimate because aliens under OSUP who cannot
obtain travel documents are more likely to be removed if their
country of origin eventually issues the necessary documents, because
they lack the legal protection from removal that the regulations
implementing CAT deferral of removal provides. In contrast, aliens
granted deferral of removal under the regulations implementing CAT
cannot be removed to the country where they face torture, regardless
of document availability, unless their protection is legally
terminated.
---------------------------------------------------------------------------
These upper and lower bound estimates are used as the projected
number of initial receipts and depend on the average number of aliens
released from ICE custody who are unable to obtain travel documents and
aliens granted CAT deferral of removal. From FY 2015 through FY 2024,
the number of aliens released from ICE custody decreased approximately
67.5 percent and cases granted CAT deferral of removals increased
approximately 102.5 percent (Tables V.8 and V.9).\198\ For this
analysis, DHS relies on 10-year averages for these populations as there
are various factors outside of this rulemaking that may result in a
decrease or increase in the number of aliens identified as unable to
obtain travel documents or granted CAT deferral of removal. However,
DHS cannot predict with certainty at this time if the trend in the size
of these populations would increase, decrease, or remain stable.
Therefore, DHS uses the respective 10-year averages for this analysis.
---------------------------------------------------------------------------
\198\ Calculations:
Aliens Released from ICE Custody, Unable to Obtain Travel
Documents from Table V.8: (FY 2015 through FY 2024) / FY 2015 =
(369-120) / 369 = 0.675.
Cases Granted CAT Deferral of Removal from Table V.9: (FY 2015
through FY 2024) / FY 2015 = (-245-121) / 121 = 1.025.
---------------------------------------------------------------------------
DHS estimates that the lower bound share of initial grants of
employment authorization that would continue to be eligible for renewal
under this proposed rule ranges from 2.9 percent in FY 2025 to 4.0
percent in FY 2034 (Table V.10(A) column C).\199\ Under the assumption
that the same share of initial approvals would be eligible as renewals,
we multiply the renewal receipts and approvals populations by these
percentages to obtain a corresponding lower bound renewal EAD estimate
for each fiscal year (Table V.10(A) columns E and G). Further, we
estimate the upper bound assuming that the same share of initial
approvals would be eligible as renewals. Table V.10(B) repeats the
estimates for the upper bound populations for initials and renewals.
---------------------------------------------------------------------------
\199\ Calculations: For example, for FY 2025 (167 estimated
lower bound / 5,805 projected number of initial approvals) = 0.029.
For FY 2025 (489 estimated upper bound / 5,805 projected number of
initial approvals) = 0.084.
---------------------------------------------------------------------------
BILLING CODE 9111-97-P
[[Page 34414]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.033
BILLING CODE 9111-97-C
We estimate the lower bound range for renewal approvals to be 626
to 647 (Table V.10(A) Column G). DHS recognizes that the projected
renewal approvals may not fully account for the number of aliens who
would no longer be eligible for employment authorization due to the
proposed E-Verify requirement if the aliens' employers are not enrolled
and opt not to enroll in E-Verify, and if the aliens are unable to find
alternative employment with a U.S. employer who is a participant in
good standing in E-Verify. Some aliens applying for renewal may also
not be currently employed and therefore would not meet the new
requirements for renewal. Additionally, DHS does not know how many of
these aliens would be eligible under the economic necessity requirement
or how many would be determined not to warrant employment authorization
as a matter of discretion. DHS recognizes that the estimated lower
bound range of 626 to 647 could be even lower if any of the renewal
approvals do not apply for or are denied employment authorization.\200\
---------------------------------------------------------------------------
\200\ Because of the uncertainty regarding eligibility, DHS is
unable to estimate a range for renewal populations that would be
impacted by this provision and attempting to do so would be
speculative. Please see Section V.A.3.d for more information.
---------------------------------------------------------------------------
[[Page 34415]]
b. Discretionary Employment Authorization for Aliens Granted Deferred
Action ((c)(14)).
DHS estimates the affected population based on historical data for
FY 2015 through FY 2024. Table V.11 shows the annual receipts and
approvals using Form I-765 data for initial and renewal applications of
employment authorization for aliens granted deferred action for FY 2015
through FY 2024.
[GRAPHIC] [TIFF OMITTED] TP05JN26.034
The number of initial receipts of employment authorization over the
period FY 2015 through FY 2024 decreased from 35,538 in FY 2015 through
14,302 in FY 2020 (a period low), then increased to 148,398 in FY 2024
(a period high). The number of initial approvals of employment
authorization decreased from 22,177 in FY 2015 to 6,454 in FY 2016 (a
period low) before increasing to 155,468 in FY 2024 (a period high).
The number of renewal receipts of employment authorization decreased
from a high of 11,303 in FY 2015 to 3,357 in FY 2019 (a period low)
before increasing to 4,756 in FY 2024. The number of renewal approvals
of employment authorization decreased from a high of 9,073 in FY 2015
to a low of 2,731 in FY 2020 before increasing to 4,100 in FY 2024.
Although DHS estimates this proposed rule would reduce the number of
aliens eligible for employment authorization and anticipates a decline
in (c)(14) receipts and approvals for initial and renewal applications,
DHS is unable to determine the magnitude of decline for reasons
discussed further in this analysis.
Table V.12 shows annual growth rates of initial and renewal
receipts based on the receipts presented in Table V.11. For initial
receipts, the 5-year annual growth rate for the period FY 2015 to FY
2019 decreased 11.9 percent, the 5-year annual growth rate for the
period 2020 through 2024 increased 59.7 percent, and the 10-year annual
growth rate for the period FY 2015 through FY 2024 increased 15.4
percent.\201\ For renewal receipts, the 5-year annual growth rate for
the period FY 2015 through FY 2019 decreased 21.6 percent; the 5-year
annual growth rate for the period 2020 through 2024 increased 5.0
percent, and the 10-year annual growth rate for the period FY 2015
through FY 2024 decreased 8.3 percent.\202\ DHS uses
[[Page 34416]]
these growth rates to estimate the projected number of initial and
renewal receipts under the two scenarios of with and without this rule.
---------------------------------------------------------------------------
\201\ Calculations:
(((FY 2019 Initial Receipts 18,908 / FY 2015 Initial Receipts
35,538) [supcaret] (1 / 5))-1) = -0.119;
(((FY 2024 Initial Receipts 148,398 / FY 2020 Initial Receipts
14,302) [supcaret] (1 / 5))-1) = 0.597;
(((FY 2024 Initial Receipts 148,398 / FY 2015 Initial Receipts
35,538) [supcaret] (1 / 10))-1) = 0.154.
\202\ Calculations:
(((FY 2019 Renewal Receipts 3,357 / FY 2015 Renewal Receipts
11,303) [supcaret] (1 / 5))-1) = -0.216;
(((FY 2024 Renewal Receipts 4,756 / FY 2020 Renewal Receipts
3,730) [supcaret] (1 / 5))-1) = 0.05;
(((FY 2024 Renewal Receipts 4,756 / FY 2015 Renewal Receipts
11,303) [supcaret] (1 / 10))-1) = -0.083.
[GRAPHIC] [TIFF OMITTED] TP05JN26.035
To estimate the projected number of initial receipts without this
rule, DHS chooses to use the declining growth rate of -11.9 percent for
initial receipts for the period FY 2015 through FY 2019. We do not find
it reasonable to use an increasing annual percentage growth rate to
project initial receipts based on the administration's current
immigration enforcement priorities.\203\
---------------------------------------------------------------------------
\203\ See E.O. 14159, Protecting the American People Against
Invasion, secs. 2, 4, and 16(c), 90 FR 8443 (Jan. 29, 2025).
---------------------------------------------------------------------------
To estimate the projected number of renewal receipts without this
rule, DHS acknowledges that for aliens who have been granted deferred
action and employment authorization, the grant of deferred action can
be terminated at any time at DHS discretion.\204\ DHS also recognizes
that the validity period for a (c)(14) EAD would not exceed one year,
should this rule become finalized. Additionally, the declining growth
rates for initial receipts would, at some point, result in either a
plateau or a decrease in the number of renewal receipts. Therefore, we
do not find it reasonable to use an increasing annual growth rate to
estimate the projected number of renewal receipts. In this analysis, we
use the 10-year average annual growth rate of -8.3 percent for the
period FY 2015 through FY 2024 instead of the annual growth rate of -
21.6 percent for the period FY 2015 through FY 2019 (Table V.12), which
is the more conservative rate of renewal receipts between the two. By
choosing an annual growth rate of -8.3 percent, the projection without
this rule would be higher for renewal receipts, which would lead to a
greater range of potential cost estimates.
---------------------------------------------------------------------------
\204\ USCIS, ``DHS Support of the Enforcement of Labor and
Employment Laws,'' https://www.uscis.gov/working-in-the-united-states/information-for-employers-and-employees/dhs-support-of-the-enforcement-of-labor-and-employment-laws (last updated Jan. 24,
2025).
---------------------------------------------------------------------------
Next, in Table V.13, we calculate the average receipts, approvals,
and approval rates for initial and renewal receipts from the annual
receipts and approvals shown in Table V.11.\205\ The approval rate for
initials for FY 2015 through FY 2019 is 38.8 percent, for FY 2020
through FY 2024 is 95.9 percent, and for FY 2015 through FY 2024 is
77.9 percent. The approval rate for renewals for FY 2015 through FY
2019 is 72.9 percent, for FY 2020 through FY 2024 is 81.5 percent, and
for FY 2015 through FY 2024 is 76.0 percent.
---------------------------------------------------------------------------
\205\ Table V.13 Calculations:
FY 2015 through FY2019: Average Initial Receipts = (35,538 +
33,158 + 38,779 + 29,442 + 18,908) / 5 = 31,165; Average Initial
Approvals = (22,177 + 6,454 + 9,574 + 8,581 + 13,711) / 5 = 12,099;
Initial Approval Rate = 12,099 / 31,165 = 0.388; Average Renewal
Receipts = (11,303 + 6,861 + 10,173 + 4,101 + 3,357) / 5 = 7,159;
Average Renewal Approvals = (9,073 + 5,841 + 4,503 + 2,944 + 3,719)
/ 5 = 5,216; Renewal Approval Rate = 5,216 / 7,159 = 0.729.
FY 2020 through FY 2024: Average Initial Receipts = (14,302 +
25,770 + 63,785 + 84,790 + 148,398) / 5 = 67,409; Average Initial
Approvals = (14,564 + 25,337 + 53,295 + 74,594 + 155,468) / 5 =
64,652; Initial Approval Rate = 64,652 / 67,409 = 0.959; Average
Renewal Receipts = (3,730 + 3,668 + 4,376 + 3,757 + 4,756) / 5 =
4,057; Average Renewal Approvals = (2,731 + 3,063 + 3,847 + 2,794 +
4,100) / 5 = 3,307; Renewal Approval Rate = 3,307 / 4,057 = 0.815.
FY 2015 through FY 2024: Average Initial Receipts = (35,538 +
33,158 + 38,779 + 29,442 + 18,908 + 14,302 + 25,770 + 63,785 +
84,790 + 148,398) / 10 = 49,287; Average Initial Approvals = (22,177
+ 6,454 + 9,574 + 8,581 + 13,711 + 14,564 + 25,337 + 53,295 + 74,594
+ 155,468) / 10 = 38,376; Initial Approval Rate = 38,376 / 49,287 =
0.779; Average Renewal Receipts = (11,303 + 6,861 + 10,173 + 4,101 +
3,357 + 3,730 + 3,668 + 4,376 + 3,757 + 4,756) / 10 = 5,608; Average
Renewal Approvals = (9,073 + 5,841 + 4,503 + 2,944 + 3,719 + 2,731 +
3,063 + 3,847 + 2,794 + 4,100) / 10 = 4,262; Renewal Approval Rate =
4,262 / 5,608 = 0.760.
[GRAPHIC] [TIFF OMITTED] TP05JN26.036
[[Page 34417]]
To project the number of initial approvals without this rule in
Table V.14, DHS chooses the more conservative initial approval rate by
choosing the 5-year average annual rate of 95.9 percent from FY 2020
through FY 2024. Moreover, to project the number of renewal approvals,
DHS chooses the more conservative renewal approval rate by choosing the
5-year annual rate of 81.5 percent from FY 2020 through FY 2024.
However, we note that the average renewal approval rate over the three
periods analyzed in Table V.13 are within a relatively small range of
8.6 percent (81.5 percent minus 72.9 percent). By choosing these annual
approval rates, the projections under the ``without the rule'' scenario
will be higher for initial and renewal approvals, which will lead to a
greater range of potential cost estimates.
To project FY 2025 initial and renewal receipts, we estimate the
population in accordance with the administration's current immigration
enforcement priorities. The average initial and renewal receipts from
FY 2015 through FY 2019 fall more in line with these directives and are
reasonable estimates for FY 2025. The projected FY 2025 initial
approvals are calculated by multiplying the average initial approval
rate of 95.9 percent (Table V.13) by the estimated number of initial
receipts from FY 2025, 31,165, which equals 29,887 (Table V.14).
To project FY 2026 initial receipts, the 5-year average annual
growth rate of -11.9 percent from FY 2015 through FY 2019 (Table V.12)
is multiplied by the number of projected initial receipts from FY 2025
(31,165), which equals -3,709 (rounded). Subtracting 3,709 from the
projected initial receipts for FY 2025 equals 27,456 (Table V.14).\206\
The FY 2026 initial approvals are calculated by multiplying the same
average initial approval rate of 95.9 percent by the estimated number
of initial receipts from FY 2026 (27,456), which equals 26,330
(rounded). The process was then repeated for subsequent years.
---------------------------------------------------------------------------
\206\ Calculation: 31,165 (FY 2025 estimated initial receipts) x
-0.119 (5-year annual growth rate FY 2015 to FY 2019) + 31,165 (FY
2025 estimated initial receipts) = 27,456 estimated FY 2026 initial
receipts.
---------------------------------------------------------------------------
To project FY 2025 renewal receipts, we use the 10-year average
annual growth rate of -8.3 percent for the period FY 2015 through FY
2024 (Table V.12).\207\ The FY 2025 renewal approvals are calculated by
multiplying the average renewal approval rate of 81.5 percent (Table
V.13) by the estimated number of renewal receipts from FY 2025 (7,159),
which equals 5,835 (Table V.14).
---------------------------------------------------------------------------
\207\ Calculation: 11,303 (FY 2015 renewal receipts) + 6,861 (FY
2016 renewal receipts) + 10,173 (FY 2017 renewal receipts) + 4,101
(FY 2018 renewal receipts) + 3,357 (FY 2019 renewal receipts) / 5 =
7,159 estimated FY 2025 renewal receipts.
---------------------------------------------------------------------------
To project FY 2026 renewal receipts, the more conservative 10-year
annual growth rate of -8.3 percent from FY 2015 through FY 2024 (Table
V.12) is multiplied by the number of projected renewal receipts from FY
2025 (7,159), which equals -594 (rounded). Subtracting 594 from the
projected renewal receipts for FY 2025 equals 6,565 (Table V.14).\208\
The projected number of FY 2026 renewal approvals are calculated by
multiplying the average renewal approval rate of 81.5 percent by the
estimated number of renewal receipts from FY 2026 (6,565), which equals
5,350 (rounded). The process was then repeated for subsequent years.
These projections are shown in Table V.14.
---------------------------------------------------------------------------
\208\ Calculation: 7,159 (FY 2025 estimated renewal receipts) x
-0.083 (10-year annual growth rate FY 2015 through FY 2024) + 7,159
(FY 2025 estimated renewal receipts) = 6,565 estimated FY 2026
renewal receipts.
[GRAPHIC] [TIFF OMITTED] TP05JN26.037
To project the annual number of future (c)(14) employment
authorization approvals under this rule, the estimates (without rule)
for initial and renewal receipts from Table V.14 are multiplied by the
two least conservative approval rates from Table V.13. To estimate the
lower bound projected approvals for initials under this rule the
approval rate of 38.8 percent is used and 77.9 percent is used for the
upper bound. To estimate the lower bound projected approvals for
renewals under this rule the approval rate of 72.9 percent is used and
76.0 percent is used for the upper bound. These ranges of approval
rates are reasonable as they are both below the more conservative rates
of 95.9 percent (initials) and 81.5 percent (renewals) used in the
respective estimates without the rule and they fall more in line with
the administration's current immigration enforcement priorities. The
[[Page 34418]]
projected approvals under this rule are presented in Table V.15.
---------------------------------------------------------------------------
\209\ Because of the uncertainty regarding eligibility, DHS is
unable to estimate a range for renewal populations that would be
impacted by this provision and attempting to do so would be
speculative. Please see Section V.A.3.d for more information.
---------------------------------------------------------------------------
BILLING CODE 9111-97-P
[GRAPHIC] [TIFF OMITTED] TP05JN26.038
We estimate the lower bound range for renewal approvals to be 2,393
to 5,219 (Table V.15(B) Column C). DHS recognizes that the projected
renewal approvals may not fully account for the number of aliens who
would no longer be eligible for employment authorization due to the
proposed E-Verify requirement if the aliens' employers are not enrolled
and opt not to enroll in E-Verify, and if the aliens are unable to find
alternative employment with a U.S. employer who is a participant in
good standing in E-Verify. Some aliens applying for renewal may also
not be currently employed and therefore would not meet the new
requirements for renewal. Additionally, DHS does not know how many of
these aliens would be eligible under the economic necessity requirement
or how many would be determined not to warrant employment authorization
as a matter of discretion. DHS recognizes that the estimated lower
bound range of 2,393 to 5,219 could be even lower if any of the renewal
approvals do not apply for or are denied employment authorization.\209\
c. Discretionary Employment Authorization for Aliens Paroled Into the
United States ((c)(11))
DHS estimates the affected population based on historical data for
FY 2015 to FY 2024. Table V.16 shows the annual receipts and approvals
for initial and renewal applications of employment authorization for
aliens granted parole
[[Page 34419]]
using Form I-765 for FY 2015 through FY 2024.
[GRAPHIC] [TIFF OMITTED] TP05JN26.039
BILLING CODE 9111-97-C
The number of initial receipts of employment authorization over the
period FY 2015 through FY 2024 decreased from 52,709 in FY 2015 to
7,099 in FY 2020 (a period low), then increased to 748,544 in FY 2024
(a period high). The number of initial approvals for employment
authorizations increased from 48,060 in FY 2015 to 74,526 in FY 2016,
before decreasing to a low of 4,341 in FY 2019. Subsequently, the
number of initial approvals increased annually with a high of 753,357
in FY 2024. The number of renewal receipts for employment
authorizations decreased from 5,133 in FY 2015 to a low of 1,862 in FY
2022, before increasing to a high of 43,586 in FY 2024. The number of
renewal approvals for employment authorization generally decreased from
3,741 in FY 2015 to a low of 856 in FY 2021 before increasing to a high
of 36,718 in FY 2024. Although DHS estimates this proposed rule would
reduce the number of aliens eligible for employment authorization and
anticipates a decline in (c)(11) receipts and approvals for both
initial and renewals, DHS is unable to determine the magnitude of
decline for reasons discussed further in this analysis.
Table V.17 shows annual growth rates of initial and renewal
receipts based on the receipts presented in Table V.16. For initial
receipts, the 5-year annual growth rate for the period FY 2015 through
FY 2019 decreased 22.7 percent; the 5-year annual growth rate for the
period FY 2020 through FY 2024 increased 153.9 percent; and the 10-year
annual growth rate for the period FY 2015 through FY 2024 increased
30.4 percent.\210\ For renewal receipts, the 5-year annual growth rate
for the period FY 2015 through FY 2019 decreased 8 percent; the 5-year
annual growth rate for the period FY 2020 through FY 2024 increased
75.5 percent; and the 10-year annual growth rate for the period FY 2015
through FY 2024 increased 23.9 percent.\211\ DHS uses these growth
rates to estimate the projected number of initial and renewal receipts
under the two scenarios with and without this rule.
---------------------------------------------------------------------------
\210\ Calculation:
(((FY 2019 Initial Receipts 14,592 / FY 2015 Initial Receipts
52,709) [supcaret] (1 / 5))-1) = -0.227;
(((FY 2024 Initial Receipts 748,544 / FY 2020 Initial Receipts
7,099) [supcaret] (1 / 5))-1) = 1.539;
(((FY 2024 Initial Receipts 748,544 / FY 2015 Initial Receipts
52,709) [supcaret] (1 / 10))-1) = 0.304.
\211\ Calculations:
(((FY 2019 Renewal Receipts 3,382 / FY 2015 Renewal Receipts
5,133) [supcaret] (1 / 5))-1) = -0.080;
(((FY 2024 Renewal Receipts 43,586 / FY 2020 Renewal Receipts
2,619) [supcaret] (1 / 5))-1) = 0.755;
(((FY 2024 Renewal Receipts 43,586 / FY 2015 Renewal Receipts
5,133) [supcaret] (1 / 10))-1) = 0.239.
---------------------------------------------------------------------------
[[Page 34420]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.040
To estimate the projected number of initial receipts without this
rule, DHS chooses to use the declining growth rate of -22.7 percent for
initial receipts for the period FY 2015 through FY 2019. We do not find
it reasonable to use an increasing annual percentage growth rate to
project initial receipts based on the administration's current
immigration enforcement priorities.\212\
---------------------------------------------------------------------------
\212\ See E.O. 14159, Protecting the American People Against
Invasion, secs. 2, 4, and 16(c), 90 FR 8443 (Jan. 29, 2025).
---------------------------------------------------------------------------
To estimate the projected number of renewal receipts without this
rule, DHS acknowledges that aliens granted parole and have been
authorized to work can have their parole terminated at DHS discretion.
DHS also recognizes that the period of employment authorization is
variable. Typically, employment authorization under (c)(11) is granted
for the duration of parole or one year, whichever is shorter.\213\
Additionally, the declining growth rate for initial receipts would, at
some point, result in either a plateau or a decrease for renewal
receipts. Therefore, we do not find it reasonable to use an increasing
annual growth rate to estimate the projected number of renewal
receipts. In this analysis, we use the 5-year average growth rate of -8
percent for the period FY 2015 through FY 2019 (Table V.17).
---------------------------------------------------------------------------
\213\ See Section 100003(b)(1) of One Big Beautiful Bill Act,
Immigration and Law Enforcement Matters, Part I, Title X of Public
Law 119-21, 139 Stat. 72 (July 4, 2025); 8 U.S.C. 1803(b)(1)
(defining the validity period for initial employment authorization
of parolees to a period of 1 year or for the duration of the alien's
parole, whichever is shorter).
---------------------------------------------------------------------------
Next, in Table V.18, we calculate the average receipts and
approvals and approval rates for initial and renewal receipts from the
annual receipts and approvals shown in Table V.16.\214\ The approval
rate for initials for FY 2015 through FY 2019 is 95.7 percent, for FY
2020 to FY 2024 is 88.9 percent, and for FY 2015 through FY 2024 is
89.8 percent. The approval rate for renewals for FY 2015 through FY
2019 is 66.1 percent, for FY 2020 through FY 2024 is 78.6 percent, and
for FY 2015 through FY 2024 is 75.7 percent.
---------------------------------------------------------------------------
\214\ Table V.18 Calculations:
FY 2015 through FY 2019: Average Initial Receipts = (52,709 +
77,038 + 50,388 + 10,871 + 14,592) / 5 = 41,120; Average Initial
Approvals = (48,060 + 74,526 + 55,558 + 14,194 + 4,341) / 5 =
39,336; Initial Approval Rate = 39,336 / 41,120 = 0.957; Average
Renewal Receipts = (5,133 + 4,402 + 4,809 + 4,310 + 3,382) / 5 =
4,407; Average Renewal Approvals = (3,741 + 3,409 + 2,760 + 3,331
+1,332) / 5 = 2,915; Renewal Approval Rate = 2,915 / 4,407 = 0.661.
FY 2020 through FY 2024: Average Initial Receipts = (7,099 +
69,397 + 98,249 + 392,398 + 748,544) / 5 = 263,137; Average Initial
Approvals = (12,541 + 31,876 + 72,265 + 299,987 + 753,357) / 5 =
234,005; Initial Approval Rate = 234,005 / 263,137 = 0.889; Average
Renewal Receipts = (2,619 + 2,088 + 1,862 + 20,325 + 43,586) / 5 =
14,096; Average Renewal Approvals = (1,464 + 856 + 1,151 + 15,237 +
36,718) / 5 = 11,085; Renewal Approval Rate = 11,085 / 14,085 =
0.786.
FY 2015 through FY 2024: Average Initial Receipts = (52,709 +
77,038 + 50,388 + 10,871 + 14,592 + 7,099 + 69,397 + 98,249 +
392,398 + 748,544) / 10 = 152,129; Average Initial Approvals =
(48,060 + 74,526 + 55,558 + 14,194 + 4,341 + 12,541 + 31,876 +
72,265 + 299,987 + 753,357) / 10 = 136,671; Initial Approval Rate =
136,671 / 152,129 = 0.898; Average Renewal Receipts = (5,133 + 4,402
+ 4,809 + 4,310 + 3,382 + 2,619 + 2,088 + 1,862 + 20,325 + 43,586) /
10 = 9,252; Average Renewal Approvals = (3,741 + 3,409 + 2,760 +
3,331 +1,332 + 1,464 + 856 + 1,151 + 15,237 + 36,718) / 10 = 7,000;
Renewal Approval Rate = 7,000 / 9,252 = 0.757.
[GRAPHIC] [TIFF OMITTED] TP05JN26.041
To project the number of initial approvals without this rule in
Table V.19, DHS chooses the more conservative initial approval rate by
choosing the 5-year annual rate of 95.7 percent from FY 2015 through FY
2019. Moreover, to project FY 2025 renewal approvals, DHS chooses the
more conservative renewal approval rate by
[[Page 34421]]
choosing the 5-year annual rate of 78.6 percent from FY 2020 through FY
2024. However, we note that the average renewal approval rate over the
three periods analyzed in Table V.18 are within a relatively small
range of 12.5 percentage (78.6 percent minus 66.1 percent). By choosing
these annual approval rates, the projections will be higher for initial
and renewal approvals, which will lead to a greater range of potential
cost estimates.
To project FY 2025 initial and renewal receipts, we estimate the
population in accordance with the administration's current immigration
enforcement priorities. The average initial and renewal receipts from
FY 2015 through FY 2019 fall more in line with these directives and are
reasonable estimates for FY 2025. To project FY 2025 initial receipts,
the 5-year average annual number of initial receipts of 41,120 from FY
2015 through FY 2019 is used. The projected FY 2025 initial approvals
are calculated by multiplying the average initial approval rate of 95.7
percent (Table V.18) for FY 2015 through FY 2019 by the estimated
number of initial receipts from FY 2025 (41,120), which equals 39,352
(rounded).
To project FY 2026 initial receipts, the 5-year average annual
growth rate of -22.7 percent from FY 2015 through FY 2019 (Table V.17)
is multiplied by the number of projected initial receipts from FY 2025
(41,120), which equals -9,334 (rounded). Subtracting 9,334 from the
projected initial receipts for FY 2025 equals 31,786 (Table V.19).\215\
The FY 2026 initial approvals are calculated by multiplying the same
average initial approval rate of 95.7 percent by the estimated number
of initial receipts from FY 2026 (31,786), which equals 30,419
(rounded). The process was then repeated for subsequent years.
---------------------------------------------------------------------------
\215\ Calculation: 41,120 (FY 2025 estimated initial receipts) x
-0.227 (5-year annual growth rate FY 2015 to FY 2019) + 41,120 (FY
2025 estimated initial receipts) = 31,786 estimated FY 2026 initial
receipts.
---------------------------------------------------------------------------
To project FY 2025 renewal receipts, the 5-year average annual
number of renewal receipts of 4,407 from FY 2015 through FY 2019 is
used.\216\ The projected FY 2025 renewal approvals are calculated by
multiplying the average renewal approval rate of 78.6 percent (Table
V.18) for FY 2020 through FY 2024 by the estimated number of renewal
receipts from FY 2025 (4,407), which equals 3,464 (Table V.19).
---------------------------------------------------------------------------
\216\ Calculation: 5,133 (FY 2015 renewal receipts) + 4,402 (FY
2016 renewal receipts) + 4,809 (FY 2017 renewal receipts) + 4,310
(FY 2018 renewal receipts) + 3,382 (FY 2019 renewal receipts) / 5 =
4,407 estimated FY 2025 renewal receipts.
---------------------------------------------------------------------------
To project FY 2026 renewal receipts, the 5-year annual growth rate
of -8.0 percent from FY 2015 through FY 2019 (Table V.17) is multiplied
by the number of projected renewal receipts from FY 2025 (4,407), which
equals -353 (rounded). Subtracting 353 from the projected renewal
receipts for FY 2025 equals 4,054 (Table V.19).\217\ The FY 2026
renewal approvals are calculated by multiplying the same average
renewal approval rate of 78.6 percent by the estimated number of
renewal receipts from FY 2026 (4,054), which equals 3,186 (rounded).
The process was then repeated for subsequent years. These projections
are shown in Table V.19.
---------------------------------------------------------------------------
\217\ Calculation: 4,407 (FY 2025 estimated renewal receipts) x
-0.080 (5-year annual growth rate FY 2015 to FY 2019) + 4,407 (FY
2025 estimated renewal receipts) = 4,054 estimated FY 2026 renewal
receipts.
[GRAPHIC] [TIFF OMITTED] TP05JN26.042
To project the annual number of future (c)(11) employment
authorization approvals under this rule, the projected ``without the
rule'' estimates for initial and renewal receipts from Table V.19 are
multiplied by approval rates from Table V.18. To estimate the lower
bound projected initial approvals under this rule the approval rate of
88.9 percent is used and 89.8 percent is used for the upper bound.\218\
To estimate the lower bound projected renewal approvals under this rule
the approval rate of 66.1 percent is used and 75.7 percent is used for
the upper bound. These ranges of approval rates are reasonable as they
are both below the more conservative rates of 95.7 percent (initials)
and 78.6 percent (renewals) used in the respective projected estimates
without this rule (Table V.19) and they fall more in line with the
Administration's current immigration enforcement priorities. The
projected approvals
[[Page 34422]]
under this rule are presented in Table V.20.
---------------------------------------------------------------------------
\218\ DHS recognizes that this range is relatively tight but
these percents are based on actuals and is more likely to accurately
portray a range of approvals under this rule.
---------------------------------------------------------------------------
BILLING CODE 9111-97-P
[GRAPHIC] [TIFF OMITTED] TP05JN26.043
BILLING CODE 9111-97-C
We estimate the lower bound range for renewal approvals to be 1,375
to 2,913 (Table V.20(B) Column C). DHS recognizes that the projected
renewal approvals may not fully account for the number of aliens who
would no longer be eligible for employment authorization due to the
proposed E-Verify requirement if the aliens' employers are not enrolled
and opt not to enroll in E-Verify, and if the aliens are unable to find
alternative employment with a U.S. employer who is a participant in
good standing in E-Verify. Some aliens applying for renewal may also
not be currently employed and therefore would not meet the new
requirements for renewal. Additionally, DHS does not know how many of
these aliens would be eligible under the economic necessity requirement
or how many would be determined not to warrant employment authorization
as a matter of discretion. DHS recognizes that the estimated lower
bound range of 1,375 to 2,913 could be even lower if any of the renewal
approvals do not apply for or are denied employment authorization.\219\
---------------------------------------------------------------------------
\219\ Because of the uncertainty regarding eligibility, DHS is
unable to estimate a range for renewal populations that would be
impacted by this provision and attempting to do so would be
speculative. Please see Section V.A.3.d for more information.
---------------------------------------------------------------------------
[[Page 34423]]
d. Aliens Applying for Renewal of Employment Authorization--E-Verify
DHS proposes to allow (c)(11), (c)(14), and (c)(18) aliens who are
granted employment authorization after the effective date of the final
rule to have their employment authorization renewed only if the alien
meets the initial employment authorization eligibility criteria
proposed in this rule and establishes that he or she is employed by a
U.S. employer who is a participant in good standing in E-Verify, the
DHS employment eligibility verification program, by providing the U.S.
employer's E-Verify company identification number and the U.S.
employer's name as listed in E-Verify. Because this rule proposes to
limit and clarify eligibility for employment authorization for aliens
temporarily released on an order of supervision and aliens granted
deferred action and parole, the impact on renewal populations would
depend on which aliens remain eligible and if an alien's employer
already participates in E-Verify, or would be willing to enroll and
participate in E-Verify if the employer is not enrolled.\220\ Because
of the uncertainty regarding eligibility, DHS is unable to estimate a
range for renewal populations that would be impacted by this provision,
and attempting to do so would be speculative. However, DHS acknowledges
there would be aliens applying for renewal who would be impacted by
this provision.
---------------------------------------------------------------------------
\220\ Currently, there are approximately 1,392,898 employers
participating in E-Verify at over 2.4 million hiring sites.
Employers enroll in E-Verify by reporting their company details, to
include the company's name, parent organization, physical
verification location, mailing address, employer identification
number and total number of employees. See E-Verify History and
Milestones, https://www.e-verify.gov/about-e-verify/history-and-milestones (last accessed July 8, 2025). For more information
regarding how to confirm if an employer is in good standing in the
E-Verify system, please refer back to Section IV.A.3 (E-Verify).
---------------------------------------------------------------------------
e. Termination of Employment Authorization--8 CFR 274a.14
As noted in the preamble, DHS is proposing to expand the reasons
for automatic termination under 8 CFR 274a.14. The populations
previously described in this analysis would be impacted by this
provision because their employment authorization will be terminated
earlier than it would have been without this rule.\221\ Because of the
uncertainty regarding the termination of employment authorization and
the factors triggering termination, DHS is unable to estimate the
precise portion of population impacts and attempting to do so would be
speculative. However, DHS acknowledges costs for aliens whose
employment authorization is terminated similar to those ascribed to
aliens no longer eligible for employment authorization.
---------------------------------------------------------------------------
\221\ All EAD categories that would be affected by these
proposed changes include: (c)(1)-(12), (c)(14), (c)(16)-(22),
(c)(24)-(c)(26), (c)(33)-(c)(36), and (c)(40).
---------------------------------------------------------------------------
f. Employer Population
DHS recognizes that this proposed rule would impact employers who
currently, or will in the future, employ (c)(11), (c)(14), and (c)(18)
alien workers. However, DHS cannot precisely estimate the number of
employers that could incur costs because employment authorization for
discretionary EADs is considered to be ``open market,'' where alien
workers are not tied to a specific employer. Such employment also does
not require a Labor Condition Application or a Temporary Labor
Certification from the U.S. Department of Labor (DOL), or other
employer data at any point in the employment authorization application
process (initial, renewal, or replacement stage). DHS recognizes that
many factors influence whether an employer participates in the E-Verify
program. While E-Verify is a free, voluntary program, some employers
are required to enroll in the program as a condition of Federal
contracting or as a condition of business licensing under State
legislation or other applicable laws. However, DHS cannot predict the
number of employers who would use E-Verify or how many would experience
labor turnover due to this proposed rule. Further, DHS does not know
the number of employers that would choose to enroll in E-Verify to
retain their discretionary employment authorized alien employees or the
overall number of employees for whom these entities would create an E-
Verify case, should the employers enroll. DHS is also unable to
determine the number of employers whose discretionary employment
authorized alien employees would remain employment eligible as a result
of this proposed rule. DHS welcomes public comment or data on employers
who enroll in the E-Verify program to retain discretionary employment
authorized alien employees as well as the overall number of employees
for whom employers would create E-Verify cases, should they verify the
employment authorization of employees. DHS notes that this provision
may act as a barrier to a company hiring or continuing to employ a
discretionary employment authorized alien should the company make the
choice to not enroll in E-Verify. Such barriers contribute to the cost
calculation of this rule by increasing the potential for turnover costs
incurred by U.S. businesses, even in situations where a discretionary
employment authorized employee remains employment authorized.
4. Monetized Impact Analysis
This section presents the estimated monetized costs associated with
the proposed rule. The impacts of the proposed provisions are estimated
in comparison with the ``without the rule'' scenario, a baseline that
assumes no proposed action would be implemented. DHS anticipates that
revising eligibility and introducing new evidentiary requirements for
discretionary employment authorization could have several impacts,
including potential lost earnings to alien workers, the costs
associated with a 30-minute time burden increase to complete Form I-
765, the requirement to complete Form I-765WS and the associated 30-
minute time burden, traveling to an ASC and submitting biometrics, and
the 15-minute increase to complete Form I-131 ((c)(11) category only).
The proposed rule is estimated to result in a reduction in the
number of aliens who are eligible for employment authorization, under
the (c)(11), the (c)(14), and the (c)(18) categories. The impacts of
reducing the number of (c)(11), (c)(14), and (c)(18) aliens who are
eligible for employment authorization include both potential
distributional impacts (transfers) and costs. DHS uses lost
compensation to these alien populations who would no longer be eligible
for employment authorization and associated tax implications as a
measure of the impact of this change--either as distributional impacts
(transfers) from these aliens to others or as a proxy for businesses'
cost for lost productivity.
a. Discretionary Employment Authorization for Aliens on OSUP ((c)(18))
i. Earnings
DHS has no information on wages or occupations of alien workers
with employment authorization under the (c)(18) category, at the
initial or renewal stage, since these alien workers obtain an open-
market EAD that does not include or require any data on their
employment. Because many of the aliens applying for (c)(18) category
would be relatively new entrants to the labor force, we would not
expect many of them to earn ``high-tier'' wages. The Federal minimum
wage is currently
[[Page 34424]]
$7.25 per hour,\222\ but many States have implemented higher minimum
wage rates.\223\ However, the Federal Government does not track a
nationwide population-weighted minimum wage estimate. Aliens in the
population of interest could be located anywhere within the United
States and may be subject to a range of minimum wage rates depending on
the State or city in which the alien lives.
---------------------------------------------------------------------------
\222\ See DOL, ``Minimum Wage,'' https://www.dol.gov/general/topic/wages/minimumwage (last visited Feb. 4, 2025).
\223\ See DOL, ``State Minimum Wage Laws,'' https://www.dol.gov/agencies/whd/minimum-wage/state (last visited Feb. 4, 2025).
---------------------------------------------------------------------------
Consistent with other rules, DHS uses the 10th percentile hourly
wage from the Bureau of Labor Statistics (BLS) National Occupational
Employment and Wage Estimates for all occupations as a reasonable proxy
for the effective minimum wage for individuals who are likely to earn
an entry-level wage. BLS estimates account for changes in wages across
the United States labor market, which is updated annually and will thus
reflect any changes to State minimum wage rates. The 10th percentile
hourly wage estimate for all occupations is currently $13.97, not
accounting for worker benefits.\224\
---------------------------------------------------------------------------
\224\ See BLS, ``May 2023 National Occupational Employment and
Wage Estimates,'' ``United States,'' ``All Occupations'' (SOC #00-
0000), https://www.bls.gov/oes/2023/May/oes_nat.htm#00-0000 (last
updated Apr. 3, 2024). The 10th, 25th, 75th and 90th percentile
wages are available in the downloadable XLS file link.
---------------------------------------------------------------------------
It is likely that some aliens impacted would 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.
However, DHS does not rule out the possibility that some portion of the
population might earn the average wage for all occupations. Therefore,
this analysis uses both the effective minimum hourly wage rate of
$13.97 to estimate a lower bound and an average wage rate for all
occupations of $31.48 as an upper bound in consideration of the
variance in average wages across States.\225\
---------------------------------------------------------------------------
\225\ See BLS, ``May 2023 National Occupational Employment and
Wage Estimates,'' ``United States,'' ``All Occupations'' (SOC #00-
0000), https://www.bls.gov/oes/2023/May/oes_nat.htm#00-0000 (last
visited Jan. 31, 2025). The average wage of $31.48 for all
occupations is found under occupation code 00-0000.
---------------------------------------------------------------------------
DHS accounts for worker benefits when estimating the opportunity
cost of time by calculating a benefits-to-wage multiplier using the
most recent BLS report detailing average total employee compensation
for all civilian American workers.\226\ DHS estimates the benefits-to-
wage multiplier to be 1.45, which incorporates employee wages and
salaries and the full cost of benefits, such as paid leave, insurance,
and retirement.\227\ Therefore, using the benefits-to-wage multiplier,
DHS calculates the total rate of compensation for individuals at the
high end of the range as $45.65 where the average wage estimate for all
occupations is $31.48 per hour and the average benefits are $14.17 per
hour.\228\ DHS calculates the total rate of compensation for
individuals at the lower end of the range as $20.26 per hour, where the
10th percentile hourly wage estimate is $13.97 per hour and the average
benefits are $6.29 per hour.\229\ All of the quantified estimates of
costs and transfer payments in this analysis incorporate lower and
upper bound compensation ranges based on the effective minimum hourly
wage and the average hourly wage across all occupations.
---------------------------------------------------------------------------
\226\ See BLS, Economic News Release, ``Employer Costs for
Employee Compensation--September 2024,'' Table 1. Employer costs for
employer compensation by ownership, p. 4, https://www.bls.gov/news.release/archives/ecec_12172024.pdf.
\227\ The benefits-to-wage multiplier is calculated as follows:
(Total Employee Compensation per hour) / (Wages and Salaries per
hour) = $46.84 / $32.25 = 1.45 (rounded). See BLS, Economic News
Release, ``Employer Costs for Employee Compensation--September
2024,'' Table 1. Employer costs for employer compensation by
ownership, p. 4, https://www.bls.gov/news.release/archives/ecec_12172024.pdf.
\228\ The calculation of the benefits-weighted average for all
occupations hourly wage estimate: $31.48 per hour x 1.45 benefits-
to-wage multiplier = $45.65 (rounded) per hour.
\229\ The calculation of the benefits-weighted 10th percentile
hourly wage estimate: $13.97 per hour x 1.45 benefits-to-wage
multiplier = $20.26 (rounded) per hour.
---------------------------------------------------------------------------
To obtain the annual salary we multiply the hourly wage by annual
work hours. The typical annual number of work hours is 2,080 (40 hours
per week times 52 weeks in a year). However, not all American workers
are employed full-time, so we make an adjustment to number of hours
worked per week. BLS currently reports that average weekly hours across
all private nonfarm industries is 34.3 hours.\230\ Using this
adjustment we arrive at 1,784 hours worked per year (34.3 hours per
week times 52 weeks in a year). Since the current validity period of a
(c)(18) EAD is up to 1 year, DHS multiplied the total rate of
compensation using the average effective minimum hourly wage rate of
$20.26 and the average hourly compensation rate across all occupations
of $45.65 by 1,784 hours to estimate the annual earnings of $36,144 and
$81,440, respectively.
---------------------------------------------------------------------------
\230\ BLS, Economic News Release, ``The Employment Situation--
December 2024,'' https://www.bls.gov/news.release/archives/empsit_01102025.pdf.
---------------------------------------------------------------------------
Table V.21 shows the two estimated population ranges for initial
and renewal approvals for the two ranges of wage estimates for aliens
temporarily released on OSUP and the corresponding potential lost
earnings. Regarding the estimated approvals under this rule reported in
Columns A and C and the estimated baseline filers without this rule
reported in Column E, the assessments of possible impacts rely on the
assumption that everyone who was approved for employment authorization
under the (c)(18) category entered the labor force. This assumption is
justifiable because aliens, with few exceptions, generally would not
have expended the direct filing (for the pertinent employment
authorization categories in which there is a filing fee) and time-
related opportunity costs associated with applying for employment
authorization if the aliens did not expect to recoup an economic
benefit. Realistically, however, aliens might not be employed for any
number of other reasons not specifically relevant to this action.
The national unemployment rate as of December 2024 was 4.1
percent.\231\ There is constant and considerable job turnover in the
labor market even when the unemployment rate is low. Aliens 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 project scaled populations (from Table V.10 Columns A, B, and G) in
Table V.21 Columns A, C, and E to account for current unemployment,
which is conducted by integrating the employment rate, as unity minus
0.041, to arrive at 0.959.\232\
---------------------------------------------------------------------------
\231\ BLS, Economic News Release, ``The Employment Situation--
December 2024,'' https://www.bls.gov/news.release/archives/empsit_01102025.pdf.
\232\ Calculations examples:
Table V.21(A), Column A (FY 2025) = 167 x 0.959 = 160;
Table V.21(A), Column C (FY 2025) = 489 x 0.959 = 469;
Table V.21(A), Column E (FY 2025) = 5,805 x 0.959 = 5,567;
Table V.21(C), Column A (FY 2025) = 630 x 0.959 = 604;
Table V.21(C), Column C (FY 2025) = 1,824 x 0.959 = 1,749;
Table V.21(C), Column E (FY 2025) = 21,710 x 0.959 = 20,820.
---------------------------------------------------------------------------
Table V.21(A) shows cost estimates for the lower and upper bound
range of initial employment authorization approvals based on the lower
bound
[[Page 34425]]
wage annual earnings of $36,144. The total earnings for each population
under the rule based on the projections developed in the (c)(18)
``Population'' section is reported in Columns B, D and F. Columns G and
H present the potential lost earnings, by subtracting the potential
earnings from rule populations (Columns B and D) from the current
baseline (Column F). Similarly, Table V.21(B) repeats the estimates for
the lower and upper bound range of initial employment authorization
approvals based on the upper bound (average) wage annual earnings of
$81,440. Tables V.21(C) and V.21(D) repeat the estimates from Table
V.21(A) and V.21(B) for the lower and upper bound ranges of renewal
employment authorization approvals based on the lower and upper bound
wage annual earnings, respectively.
BILLING CODE 9111-97-P
[[Page 34426]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.044
[[Page 34427]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.045
DHS uses the lost compensation to aliens temporarily released on an
order of supervision as a measure of the overall impact of removing
eligibility for employment authorization under the (c)(18) category--
either as distributional impacts (transfers) or as a proxy for costs to
businesses for lost productivity. It does not include additional costs
to businesses for lost profits and opportunity costs or the
distributional impacts for those in an alien's support network.
However, these costs will be discussed further in this analysis. As
shown in Table V.21, the potential lost earnings depend on the number
of aliens released temporarily on OSUP who remain eligible for
employment authorization and continue to work, as well as their wage
rate. Over the 10-year period from FY 2025 to FY 2034, the total lost
earnings would range from $7.4 billion to $17.9 billion.\233\
Annualized at a 7 percent discount rate, lost earnings for initial and
renewal EAD holders would range from $755.2 million to $1.8 billion
(Table V.25).\234\
[[Page 34428]]
Annualized at a 3 percent discount rate, lost earnings for initial and
renewal EAD holders would range from $746.3 million to $1.8 billion
(Table V.25).
---------------------------------------------------------------------------
\233\ Calculations: $1,538,830,800 (10-year total initial upper
bound costs) + $5,854,858,128 (10-year total renewal upper bound
costs) = $7,393,688,928 (minimum 10-year total lower bound costs);
$3,718,957,600 (10-year total initial upper bound costs) +
$14,151,421,600 (10-year total renewal upper bound costs) =
$17,870,378,200 (maximum 10-year total upper bound costs).
\234\ An important assumption relied upon in this analysis is
that each holder of an approved EAD has entered the labor force and
is working (when the rule becomes effective). DHS relies on this
assumption on the grounds that aliens would not have expended the
direct filing and time-related opportunity costs of applying for an
EAD if they did not intend to recoup an economic benefit from doing
so. In reality, some EAD holders may not be employed for any number
of reasons--including normal labor market frictions--that have
nothing to do with this rule. In addition, some aliens may seek an
EAD for purposes of paper documentation and may not intend to work.
---------------------------------------------------------------------------
EAD holders who would no longer be eligible to renew their
employment authorization under the proposed eligibility criteria in
this proposed rule would incur lost earnings. Additionally, DHS
acknowledges the potential for additional lost compensation to aliens
applying for renewal if their employers are not currently enrolled in
E-Verify and opt not to enroll in the E-Verify program. In such cases,
aliens applying for renewal could lose earnings if they are unable to
find employment with an employer who participates in E-Verify.
DHS recognizes that, excluding the effects of inflation, earnings
generally rise over time and the earnings of EAD holders could be
higher in the future than estimated in this analysis. Moreover, since
employment authorization renewals necessarily follow initial employment
authorization approvals, in time, wages earned and, hence total
compensation, could be higher for renewals. Accordingly, this effect
could have a downward bias in the estimate of earnings losses. However,
we see no tractable way at present to incorporate this possibility into
the quantified estimates.
In addition to the above quantified impacts, there could be
qualitative impacts for aliens released on an order of supervision who
would no longer be eligible for employment authorization. For the
(c)(18) population that would not be able to renew their employment
authorization or obtain initial employment authorization, there would
likely be an impact in terms of lost income, which could pose economic
hardships. Members of this population may need to rely on their support
networks for financial and social assistance, which could involve, but
may not be limited to, family members and friends, religious and
charitable organizations, private non-profit providers, State and local
governments, and NGOs. DHS believes that the immediate indirect impact
of this rule to an alien's support network is likely not significantly
more than the wages and benefits the alien would have earned without
this rule.
ii. Biometrics
As discussed in the preamble, current DHS regulations provide
general authority for USCIS to require the submission of biometrics
from any alien filing for an immigration benefit on a case-by-case
basis.\235\ When USCIS determines that an alien applying for (c)(18) is
required to submit biometrics, they receive a biometrics services
appointment notice from USCIS to submit biometrics at an ASC to assist
in identity verification and facilitate (c)(18) EAD card production,
among other things.\236\ DHS is proposing to codify the requirement to
submit biometrics, where all aliens who file Form I-765 under the
(c)(18) category--for both initial and renewal applications--would be
required to appear at an ASC and submit biometrics. DHS proposes to use
the biometrics submitted by aliens applying for (c)(18) to screen for
criminal history.\237\ The submission of biometrics requires that
aliens travel to an ASC for the biometric services appointment. In past
rulemakings, DHS estimated that the average round-trip distance to an
ASC is 50 miles, and that the average travel time for the trip is 2.5
hours.\238\ The cost of travel also includes a mileage charge based on
the estimated 50 mile round trip at the 2025 General Services
Administration (GSA) rate of $0.70 per mile for use of a privately
owned automobile.\239\ Because an individual alien would spend 1 hour
and 10 minutes (1.17 hours) at an ASC to submit biometrics, summing the
ASC time and travel time yields 3.67 hours.\240\ At the lower and upper
wage bounds, we estimate the opportunity costs of time to submit
biometrics services are $74.35 and $167.54 per hour, respectively.\241\
The estimated travel cost is $35, which is the per mileage
reimbursement rate of $0.70 multiplied by the 50-mile travel distance.
Summing the opportunity cost of time and travel costs generates a per
alien biometrics submission cost of $109.35 at the lower bound wage and
$202.54 at the upper bound wage.\242\
---------------------------------------------------------------------------
\235\ Currently, biometrics collection generally refers to the
collection of fingerprints, photographs, and signatures. See USCIS,
``Preparing for your Biometric Services Appointment,'' https://www.uscis.gov/forms/forms-information/preparing-your-biometric-services-appointment (last updated July 6, 2023).
\236\ USCIS was previously authorized to collect an $85
biometric services fee. However, the recently promulgated fee rule
incorporated the biometric services costs into the underlying
immigration benefit request fees for which biometric services are
applicable and maintained a separate $30 biometric services fee for
other certain benefit requests. See 89 FR 6194 (Jan. 31, 2024) (Fee
Rule). Thus, the populations of aliens applying for I-765 in this
analysis are not required to pay a separate biometric services fee.
\237\ The cost to screen for criminal history is covered by the
Form I-765 filing fee which incorporates the biometric services
costs.
\238\ See ``Employment Authorization for Certain H-4 Dependent
Spouses; Final rule,'' 80 FR 10284 (25 Feb. 2015); and ``Provisional
and Unlawful Presence Waivers of Inadmissibility for Certain
Immediate Relatives; Final Rule,'' 78 FR 536, 572 (Jan. 3, 2013).
\239\ GSA, ``Privately owned vehicle (POV) mileage reimbursement
rates,'' https://www.gsa.gov/travel/plan-book/transportation-airfare-rates-pov-rates/privately-owned-vehicle-pov-mileage-reimbursement-rates (last updated Dec. 30, 2024).
\240\ Source for biometric time burden estimate: Paperwork
Reduction Act (PRA) Supporting Statement for USCIS Form I-485
Instructions (OMB control number 1615-0023). The PRA Supporting
Statement can be found at page 19 of the form instructions, https://www.uscis.gov/sites/default/files/document/forms/i-485instr.pdf
(last updated Jan. 20, 2025).
\241\ Calculations: 3.67 (total time in hours to submit
biometrics) x $20.26 (prevailing wage for 1 hour of work) = $74.35;
3.67 (total time in hours to submit biometrics) x $45.65 (average
wage for 1 hour of work) = $167.54.
\242\ Calculations: $35 (cost of travel) + $74.35 (time-related
costs at lower bound wage) = $109.35; $35 (cost of travel) + $167.54
(time-related costs at upper bound wage) = $202.54.
---------------------------------------------------------------------------
Table V.22 shows the two population ranges for initial and renewal
receipts for the two ranges of wage estimates for aliens released on an
order of supervision and the corresponding total cost to submit
biometrics. Table V.22(A) shows cost estimates for the lower and upper
bound range of initial Form I-765 receipts at the lower bound
submission cost of $109.35. The lower and upper bound projected
biometrics receipts in Columns B and D are the lower and upper bound
approvals under this rule from Table V.10 in the (c)(18) ``Population''
section. The total costs for Columns C and E provide the range of
undiscounted costs for the lower bound. Similarly, Table V.22(B)
repeats the estimates for the lower and upper bound range of initial
Form I-765 receipts based on the upper bound submission cost of
$202.54. Tables V.22(C) and V.22(D) repeat these estimates for the
lower and upper bound ranges of renewal Form I-765 receipts based on
the lower and upper bound submission costs, respectively.
BILLING CODE 9111-97-P
[[Page 34429]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.046
[[Page 34430]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.047
BILLING CODE 9111-97-C
As shown in Table V.22, the cost to submit biometrics depends on
the number of aliens temporarily released on an order of supervision
who apply for employment authorization and their wage rate. Over the
10-year period from FY 2025 through FY 2034, the estimated total cost
to submit biometrics would range from $919,629 to $4.9 million.\243\
Annualized at a 7 percent discount rate, the estimated costs to submit
biometrics would range from $91,843 to $498,612 (Table V.25).
Annualized at a 3 percent discount rate, the estimated costs to submit
biometrics would range from $91,910 to $499,194 (Table V.25). DHS
recognizes that the estimates presented may be an overestimate, as a
portion of the population already receives a biometrics services
appointment notice and completes biometrics submission. Under the new
requirement of this proposed rule, this portion of the population would
continue to complete biometrics and thus not incur new costs.
---------------------------------------------------------------------------
\243\ Calculations: $182,610 (10-year total initial lower bound
costs) + $737,019 (10-year total renewal lower bound costs) =
$919,629 (minimum 10-year total lower bound costs); $990,420 (10-
year total initial upper bound costs) + $4,006,039 (10-year total
renewal upper bound costs) = $4,996,459 (maximum 10-year total upper
bound costs).
---------------------------------------------------------------------------
iii. Forms
For aliens who remain eligible to be employment authorized, the
proposed rule would increase the time burden for Form I-765 on the
population of aliens applying for employment authorization. This rule
also proposes to add filing procedures and evidentiary requirements for
aliens released on an order of supervision who are seeking initial
employment authorization or renewing employment authorization. The
proposed new requirements include submitting Form I-765WS along with
supporting documentation \244\ to establish the alien's economic
necessity for employment and, for aliens applying for renewal only, the
name of the alien's U.S. employer as listed in E-Verify and that
employer's E-Verify Company Identification Number.
---------------------------------------------------------------------------
\244\ Supporting evidence includes, but is not limited to, pay
stubs, an IRS transcript for the most recent tax year, Form W-2
series or Form 1099 series for the most recent tax year, evidence of
the value of the alien's assets such as the appraised value of a
home, utility bills, credit card statements, bank statements, and
evidence of claimed income including alimony, child support, and
dividends.
\245\ See PRA Supporting Statement for USCIS Form I-765
Instructions (OMB control number 1615-0040). The PRA Supporting
Statement can be found at page 25 of the form instructions, https://www.uscis.gov/sites/default/files/document/forms/i-765instr.pdf
(last updated Aug. 28, 2024).
\246\ The additional 30 minutes is an average estimate across
all respondents completing Form I-765 to review additional language
in the instructions and gather required supporting documentation.
---------------------------------------------------------------------------
DHS estimates the time burden for completing Form I-765 is 4.38
hours.\245\ For aliens released on OSUP who apply for employment
authorization after the effective date of this rule should it be
finalized, this proposed rule would increase the time burden of Form I-
765 by 30 minutes (0.5 hours) for a total of 4.88 hours.\246\ The
increased time burden is due to the proposed regulatory requirement
that aliens be employed by a U.S. employer who is a participant in good
standing in E-Verify to be eligible for a renewal of employment
authorization. This change would increase the opportunity cost of time
for each application by approximately $10.13 based on the effective
minimum hourly
[[Page 34431]]
compensation and by about $22.83 based on the average compensation for
all occupations.\247\
This proposed rule would also make it a requirement to submit Form
I-765WS for aliens applying for employment authorization under the
(c)(18) category. Currently, proving the existence of economic
necessity to be employed is listed as a discretionary factor for
consideration, but it is not a requirement under the (c)(18) category.
In this proposed rule, DHS would make this a mandatory requirement. DHS
estimates the current time burden for completing Form I-765WS is 30
minutes (0.5 hours).\248\ However, due to the proposed regulatory
requirement that aliens provide supplementary documentation for their
financial records reported in Form I-765WS, the time burden will
increase 30 minutes (0.5 hours), making the new time burden to complete
the form 1 hour. For aliens temporarily released on an order of
supervision who continue to be eligible and apply for employment
authorization after the effective date of the rule should it be
finalized, the proposed rule would increase the opportunity cost of
time for each alien by $20.26 based on the effective minimum hourly
compensation and $45.65 based on the average compensation for all
occupations.\249\ Combining the new costs of the Forms I-765 and I-
765WS, the total per alien increased time burden would add costs of
$30.39 and $68.48 at the respective lower and upper bound compensation
rates.\250\
---------------------------------------------------------------------------
\247\ Calculations: 0.5 (burden hours) x $20.26 (effective
minimum hourly wage for 1 hour of work) = $10.13 (rounded). 0.5
(burden hours) x $45.65 (average wage for all occupations for 1 hour
of work) = $22.83 (rounded).
\248\ See PRA Supporting Statement for USCIS Form I-765
instructions (OMB control number 1615-0040). The PRA Supporting
Statement can be found at page 25 of the form instructions, https://www.uscis.gov/sites/default/files/document/forms/i-765instr.pdf
(last updated Aug. 28, 2024).
\249\ Calculations: 1.0 hour (time to file I-765WS) x $20.26
(effective minimum hourly wage for 1 hour of work) = $20.26; 1.0
hour (time to file I-765WS) x $45.65 (average wage for all
occupations for 1 hour of work) = $45.65.
\250\ Calculations 1.5 hours (0.5 additional I-765 burden hours
+ 1.0 hour to file I-765WS) x $20.26 = $30.39; Calculations 1.5
hours (0.5 additional I-765 burden hours + 1.0 hour to file I-765WS)
x $45.65 = $68.48.
---------------------------------------------------------------------------
Table V.23 shows the additional opportunity cost of time for filing
Form I-765 and Form I-765WS for the two population ranges for initial
and renewal receipts. Table V.23(A) shows cost estimates for the lower
and upper bound range of initial Form I-765 receipts based on the lower
bound additional opportunity cost of time of $30.39. The lower and
upper bound projected forms receipts in Columns B and D are the lower
and upper bound approvals under this rule from Table V.10 in the
(c)(18) ``Population'' section. The total costs for Columns C and E
provide the range of undiscounted costs for the lower bound
compensation. Similarly, Table V.23(B) repeats the estimates for the
lower and upper bound range of initial EAD receipts based on the upper
bound additional opportunity cost of time of $68.48. Tables V.23(C) and
V.23(D) repeat these estimates for the lower and upper bound ranges of
renewal Form I-765 receipts based on the lower and upper bound wage
opportunity cost of time, respectively.
BILLING CODE 9111-97-P
[[Page 34432]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.048
[[Page 34433]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.049
BILLING CODE 9111-97-C
As indicated in the table, the estimated total opportunity costs of
time incurred as a result of the increased time burden for completing
the forms over the 10-year period from FY 2025 through FY 2034 would
range from about $255,579 to $1.7 million.\251\ Annualized at a 7
percent discount rate, the estimated costs would range from $25,525 to
$168,584 (Table V.25). Annualized at a 3 percent discount rate, the
estimated costs would range from $25,543 to $168,781 (Table V.25).
---------------------------------------------------------------------------
\251\ Calculations: $50,750 (10-year total initial lower bound
costs) + $204,829 (10-year total renewal lower bound costs) =
$255,579 (minimum 10-year total lower bound costs); $334,870 (10-
year total initial upper bound costs) + $1,354,465 (10-year total
renewal upper bound costs) = $1,689,335 (maximum 10-year total upper
bound costs).
---------------------------------------------------------------------------
There would be no change in the estimated time burden for aliens
temporarily released on OSUP for ICE Form I-220B. ICE completes Form I-
220B and it is currently already submitted during the employment
authorization application process.
iv. Taxes
This proposed rule could reduce taxes paid to the Federal
Government (a transfer payment) in the short term. During the period of
vacancy for a job that could be (initial) or formerly (renewal) held by
the (c)(18) alien worker, the Federal Government would not be
collecting taxes.
If businesses cannot find labor for positions that affected aliens
who are no longer eligible for work authorization would have occupied,
then the unperformed labor would result in a reduction in taxes from
employers and employees to governments. Accordingly, the lost earnings
derived in the (c)(18) ``Earnings'' section will contribute to such a
reduction in taxes paid. It is challenging to quantify impacts on
Federal and State income tax revenue from employment in the labor
market because individual and household tax situations vary widely as
do the various States income tax rates.\252\ However, 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).\253\ With both
the employee and employer paying their respective portion of Medicare
and Social Security taxes, the total level of tax transfer payments
from employees and employers to Medicare and Social Security is 15.3
percent.\254\ DHS estimates the tax impacts on the unburdened earnings
basis. This is calculated by multiplying the stabilized earnings by the
employment tax rate of 15.3 percent and dividing the resulting
[[Page 34434]]
product by the benefits burden multiple of 1.45.\255\
---------------------------------------------------------------------------
\252\ Robert Frank, ``61% of Americans paid no federal income
taxes in 2020, Tax Policy Center says,'' CNBC (Aug. 18, 2021),
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
Tonya Moreno, ``Your Guide to State Income Tax Rates,'' The Balance,
https://www.thebalance.com/state-income-tax-rates-3193320 (last
updated Jan. 23, 2023).
\253\ The various employment taxes are discussed in more detail,
see IRS, ``Understanding Employment Taxes,'' https://www.irs.gov/businesses/small-businesses-self-employed/understanding-employment-taxes (last updated Jan. 7, 2025). See IRS ``Publication 15,''
``(Circular E), Employer's Tax Guide'' (Dec. 17, 2024), https://www.irs.gov/pub/irs-pdf/p15.pdf, for specific information on
employment tax rates. 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.
\254\ Employers are subject to Federal and State unemployment
taxes on wages paid to employees. Employers must meet certain
conditions to determine whether or not they must pay the Federal
unemployment tax. The current Federal unemployment tax is 6.0
percent and applies to the first $7,000 paid to each employee as
wages during the year, https://www.irs.gov/taxtopics/
tc759#:~:text=If%20you%20won't%20be,rate%20after%20credit%20is%200.6%
25. (last updated Jan. 7, 2025). State unemployment tax rates vary.
Due to the unique circumstances for each employer, it would be
difficult to assess any Federal and State unemployment tax losses.
---------------------------------------------------------------------------
To estimate the range of employment tax losses, we take the
estimated lost earnings for the range of initial and renewal projected
filers at the prevailing and average compensation rates from Table
V.21, columns G and H, multiply each year by 15.3 percent, and divide
by 1.45. These calculations are shown in Table V.24. The actual value
of tax impacts would 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.
---------------------------------------------------------------------------
\255\ 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.
---------------------------------------------------------------------------
BILLING CODE 9111-97-P
[[Page 34435]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.050
[[Page 34436]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.051
BILLING CODE 9111-97-C
Lost earnings, which DHS estimates could range between $7.4 billion
and $17.9 billion over the 10-year period from FY 2025 through FY
2034,\256\ would result in corresponding employment tax losses or
transfers ranging between $780.2 million and $1.9 billion.\257\
Annualized at a 7 percent discount rate, employment tax losses would
range from approximately $79.7 million to $192.3 million (Table V.25).
Annualized at a 3 percent discount rate, employment tax losses would
range from approximately $78.7 million to $190.2 million (Table V.25).
Again, depending on the circumstances of the employee, there could be
additional Federal income tax losses not estimated here. There may also
be State and local income tax losses that would vary according to the
jurisdiction, but that DHS is unable to quantify. We note that the
potential decrease in tax transfers only applies to the compensation
impacts, not to labor turnover costs, costs associated with form time
burdens, or implementation and use of E-Verify.
---------------------------------------------------------------------------
\256\ Calculations (data from Table V.21): $1,538,830,800 (10-
year total initial upper bound costs) + $5,854,858,128 (10-year
total renewal upper bound costs) = $7,393,688,928 (minimum 10-year
total lower bound costs); $3,718,957,600 (10-year total initial
upper bound costs) + $14,151,421,600 (10-year total renewal upper
bound costs) = $17,870,379,200 (maximum 10-year total upper bound
costs).
\257\ Calculations: $162,373,181 (10-year total initial lower
bound costs) + $617,788,477 (10-year total renewal lower bound
costs) = $780,161,658 (minimum 10-year total lower bound costs);
$392,414,148 (10-year total initial upper bound costs) +
$1,493,218,968 (10-year total renewal upper bound costs) =
$1,885,633,116 (maximum 10-year total upper bound costs).
---------------------------------------------------------------------------
v. Total
In the previous (c)(18) ``Monetized Impact Analysis'' sections we
presented estimates of the impacts of the proposed rule germane to lost
labor earnings, biometrics submission, increased time burdens for
completing forms, and transfer payments in the form of reduced taxes.
The total impacts are aggregated by summing the total initial and
renewal impacts from Tables V.21 through V.24 in terms of the maximum
and minimum estimates. Therefore, Table V.25 shows the range of
estimated monetized costs of the proposed rule, where Table V.25(A)
presents the maximum estimates, and Table V.25(B) presents the minimum
estimates. For each subsection of the table, the 10-year totals are
provided in undiscounted 10-year total values, as well as the present
value costs and annualized costs discounted at 7 percent and 3 percent.
[[Page 34437]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.052
[[Page 34438]]
As Table V.25 shows, the projected 10-year monetized undiscounted
costs of the proposed rule for the period FY 2025 through FY 2034 could
be as high as about $19.76 billion with a minimum cost estimate of
$8.18 billion under the assumptions relied on.\258\ The majority of the
costs of this rule would result from lost labor earnings, if companies
are unable to find reasonable labor substitutes for the positions that
aliens temporarily released on OSUP would have filled. DHS notes there
are unquantified costs not reflected in the estimates above.
---------------------------------------------------------------------------
\258\ Calculations: $7,393,688,928 (lost labor earnings costs) +
$919,629 (biometrics costs) + $255,579 (time burden to complete
forms costs) = $8,175,025,794 minimum undiscounted 10-year total;
$17,870,379,200 (lost labor earnings costs) + $4,996,459 (biometrics
costs) + $1689,335 (time burden to complete forms costs) =
$19,762,698,110 maximum undiscounted 10-year total.
---------------------------------------------------------------------------
b. Discretionary Employment Authorization for Aliens Granted Deferred
Action ((c)(14))
i. Earnings
DHS has no information on wages or occupations of aliens who have
been granted deferred action, at the initial or renewal stage, since
these alien workers obtain an open-market EAD that does not include or
require any data on their employment. Because many of the aliens
applying for (c)(14) would have many of the same characteristics as
aliens applying for (c)(18), such as being relatively new entrants to
the labor force and having a validity period not exceeding one year,
etc., DHS used the same wage and earnings estimates described in the
(c)(18) ``Earnings'' section. For each alien, the estimated annual
lower bound earnings used is $36,144 and the upper bound earnings is
$81,440.
Table V.26 shows the two estimated population ranges for initial
and renewal approvals for the two ranges of wage estimates for aliens
granted deferred action and the corresponding potential lost earnings.
Regarding the estimated approvals under this rule reported in Columns A
and C and the estimated baseline filers without this rule reported in
Column E, the assessments of possible impacts rely on the assumption
that everyone who was approved for employment authorization under the
(c)(14) category entered the labor force. This assumption is
justifiable because aliens, with few exceptions, generally would not
have expended the direct filing (for the pertinent employment
authorization categories in which there is a filing fee) and time-
related opportunity costs associated with applying for employment
authorization if the aliens did not expect to recoup an economic
benefit. Realistically, however, aliens might not be employed for any
number of other reasons not specifically relevant to this action.
The national unemployment rate as of December 2024 was 4.1
percent.\259\ There is constant and considerable job turnover in the
labor market even when the unemployment rate is low. Aliens 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 project scaled populations (from Table V.15: initial and renewal
baseline receipts, lower bound initial and renewal approvals under this
rule, and upper bound initial and renewal approvals under this rule) in
Table V.26 Columns A, C, and E to account for current unemployment,
which is conducted by integrating the employment rate, as unity minus
0.041, to arrive at 0.959.\260\
---------------------------------------------------------------------------
\259\ BLS, Economic News Release, ``The Employment Situation--
December 2024,'' https://www.bls.gov/news.release/archives/empsit_01102025.pdf.
\260\ Calculations examples:
Table V.26(A), Column A (FY 2025) = 12,092 x 0.959 = 11,596;
Table V.26(A), Column C (FY 2025) = 24,278 x 0.959 = 23,283;
Table V.26(A), Column E (FY 2025) = 29,887 x 0.959 = 28,662;
Table V.26(C), Column A (FY 2025) = 5,219 x 0.959 = 5,005;
Table V.26(C), Column C (FY 2025) = 5,441 x 0.959 = 5,218;
Table V.26(C), Column E (FY 2025) = 5,835 x 0.959 = 5,596.
---------------------------------------------------------------------------
Table V.26(A) shows cost estimates for the lower and upper bound
range of initial employment authorization approvals based on the lower
bound wage annual earnings of $36,144. The total earnings for each
population under the rule based on the projections developed in the
(c)(14) ``Population'' section is reported in Columns B, D and F.
Columns G and H present the potential lost earnings, by subtracting the
potential earnings from rule populations (Columns B and D) from the
current baseline (Column F). Similarly, Table V.26(B) repeats the
estimates for the lower and upper bound range of initial employment
authorization approvals based on the upper bound (average) wage annual
earnings of $81,440. Tables V.26(C) and V.26(D) repeat the estimates
from Table V.26(A) and V.26(B) for the lower and upper bound ranges of
renewal employment authorization approvals based on the lower and upper
bound wage annual earnings, respectively.
[[Page 34439]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.053
[[Page 34440]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.054
DHS uses the lost compensation to aliens granted deferred action as
a measure of the overall impact of removing eligibility for employment
authorization under the (c)(14) category--either as distributional
impacts (transfers) or as a proxy for costs to businesses for lost
productivity. It does not include additional costs to businesses for
lost profits and opportunity costs or the distributional impacts for
those in an alien's support network. However, these costs will be
discussed further in this analysis. As shown in Table V.26, the
potential lost
[[Page 34441]]
earnings depend on the number of aliens granted deferred action who
remain eligible for employment authorization and continue to work, as
well as their wage rate. Over the 10-year period from FY 2025 through
FY 2034, the total lost earnings would range from $1.3 billion to $8.7
billion.\261\ Annualized at a 7 percent discount rate, lost earnings
for initial and renewal EAD holders would range from $135.5 million to
$932.3 million (Table V.30).\262\ Annualized at a 3 percent discount
rate, lost earnings for initial and renewal EAD holders would range
from $130.7 million to $898.6 million (Table V.30).
---------------------------------------------------------------------------
\261\ Calculations: $1,173,704,112 (10-year total initial upper
bound costs) + $95,492,448 (10-year total renewal upper bound costs)
= $1,269,196,560 (minimum 10-year total lower bound costs);
$8,389,541,600 (10-year total initial upper bound costs) +
$335,940,000 (10-year total renewal upper bound costs) =
$8,725,481,600 (maximum 10-year total upper bound costs).
\262\ An important assumption relied upon in this analysis is
that each holder of an approved EAD has entered the labor force and
is working (when the rule becomes effective). DHS relies on this
assumption on the grounds that aliens would not have expended the
direct filing and time-related opportunity costs of applying for an
EAD if they did not intend to recoup an economic benefit from doing
so. In reality, some EAD holders may not be employed for any number
of reasons--including normal labor market frictions--that have
nothing to do with this rule. In addition, some aliens may seek an
EAD for purposes of paper documentation and may not intend to work.
---------------------------------------------------------------------------
EAD holders who would no longer be eligible to renew their
employment authorization under the proposed eligibility criteria in
this rule would incur lost earnings. Additionally, DHS acknowledges the
potential for additional lost compensation to aliens applying for
renewal if their employers are not currently enrolled in E-Verify and
opt not to enroll in the E-Verify program. In such cases, aliens
applying for renewal could lose earnings if they are unable to find
employment with an employer who participates in E-Verify.
DHS recognizes that, excluding the effects of inflation, earnings
generally rise over time and the earnings of EAD holders could be
higher in the future than estimated in this analysis. Moreover, since
employment authorization renewals necessarily follow initial employment
authorization approvals, in time, wages earned and, hence total
compensation, could be higher for renewals. Accordingly, this effect
could have a downward bias in the estimate of earnings losses. However,
we see no tractable way at present to incorporate this possibility into
the quantified estimates.
In addition to the above quantified impacts, there could be
qualitative impacts for aliens granted deferred action who would no
longer be eligible for employment authorization. For the (c)(14)
population that would not be able to renew their employment
authorization or obtain initial employment authorization, there would
likely be an impact in terms of lost income, which could pose economic
hardships. Members of this population may need to rely on their support
networks for financial and social assistance, which could involve, but
may not be limited to, family members and friends, religious and
charitable organizations, private non-profit providers, State and local
governments, and NGOs. DHS believes that the immediate indirect impact
of this rule to an alien's support network is likely not significantly
more than the wages and benefits the alien would have earned without
this rule.
ii. Biometrics
Current DHS regulations provide general authority for USCIS to
require the submission of biometrics from any alien filing for an
immigration benefit on a case-by-case basis. When USCIS determines that
an alien applying for (c)(14) is required to submit biometrics, they
receive a biometrics services appointment notice from USCIS to submit
biometrics at an ASC to assist in identity verification and facilitate
(c)(14) EAD card production, among other things.\263\ DHS is proposing
to codify the requirement to submit biometrics, where all aliens who
file Form I-765 under the (c)(14) category--for both initial and
renewal applications--would be required to appear at an ASC and submit
biometrics. DHS proposes to use the biometrics submitted by aliens
applying for (c)(14) to screen for criminal history.\264\ Aliens
applying for (c)(14) would likely experience similar costs to those
outlined in the (c)(18) ``Biometrics'' section, a per alien biometrics
submission cost of $109.35 and $202.54 at the respective lower and
upper wage rates for this analysis.
---------------------------------------------------------------------------
\263\ USCIS was previously authorized to collect an $85
biometric services fee. However, the recently promulgated fee rule
incorporated the biometric services costs into the underlying
immigration benefit request fees for which biometric services are
applicable and maintained a separate $30 biometric services fee for
other certain benefit requests. See 89 FR 6194 (Jan. 31, 2024) (Fee
Rule). Thus, the populations of aliens applying for I-765 in this
analysis are not required to pay a separate biometric services fee.
\264\ The cost to screen for criminal history is covered by the
Form I-765 filing fee which incorporates the biometric services
costs.
---------------------------------------------------------------------------
Table V.27 shows the two population ranges for initial and renewal
receipts for the two ranges of wage estimates for aliens granted
deferred action and the corresponding total cost to submit biometrics.
Table V.27(A) shows cost estimates for the lower and upper bound range
of initial Form I-765 receipts at the lower bound submission cost of
$109.35. The lower and upper bound projected biometrics receipts in
Columns B and D are the lower and upper bound approvals under this rule
from Table V.15 in the (c)(14) ``Population'' section.\265\ The total
costs for Columns C and E provide the range of undiscounted costs for
the lower bound. Similarly, Table V.27(B) repeats the estimates for the
lower and upper bound range of initial Form I-765 receipts based on the
upper bound submission cost of $202.54. Tables V.27(C) and V.27(D)
repeat these estimates for the lower and upper bound ranges of renewal
Form I-765 receipts based on the lower and upper bound submission
costs, respectively.
---------------------------------------------------------------------------
\265\ Using the projected lower and upper bound approvals under
this rule serves as a reasonable proxy for the projected number of
biometric receipts under this rule proposes to codify the
requirement to submit biometrics.
---------------------------------------------------------------------------
[[Page 34442]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.055
[[Page 34443]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.056
As shown in Table V.27, the cost to submit biometrics depends on
the number of aliens granted deferred action who apply for employment
authorization and their wage rate. Over the 10-year period from FY 2025
to FY 2034, the estimated total cost to submit biometrics would range
from $12.0 million to $37.4 million.\266\ Annualized at a 7 percent
discount rate, the estimated costs to submit biometrics would range
from $1.3 million to $4.0 million (Table V.30). Annualized at a 3
percent discount rate, the estimated costs to submit biometrics would
range from $1.2 million to $3.8 million (Table V.30). DHS recognizes
that the estimates presented may be an overestimate, as a portion of
the population already receives a biometrics services appointment
notice and completes biometrics submission. Under the new requirement
of this proposed rule, this portion of the population would continue to
complete biometrics, and thus not incur new costs.
---------------------------------------------------------------------------
\266\ Calculations: $7,981,785 (10-year total initial lower
bound costs) + $3,985,152 (10-year total renewal lower bound costs)
= $11,966,937 (minimum 10-year total lower bound costs); $29,682,035
(10-year total initial upper bound costs) + $7,695,101 (10-year
total renewal upper bound costs) = $37,377,136 (maximum 10-year
total upper bound costs).
---------------------------------------------------------------------------
iii. Forms
For aliens who remain eligible to be employment authorized, the
proposed rule would increase the time burden on the population of
aliens applying for employment authorization. This rule proposes to add
filing procedures and evidentiary requirements for aliens granted
deferred action who are seeking initial employment authorization or
renewing employment authorization. Currently, without this rule, aliens
applying for employment authorization under the (c)(14), deferred
action category, must complete Form I-765WS to determine if the alien
has an economic need to work. The time burden for completing this
worksheet is not included in this analysis since it is already a
requirement for this population. However, the proposed rule would
require documentary evidence to support the financial information
provided in Form I-765WS.\267\ For aliens granted deferred action and
who remain eligible to be employment authorized, the proposed rule
would require an alien applying for a (c)(14) renewal to show that he
or she is employed or is seeking employment with a U.S. employer who is
a participant in good standing in E-Verify. The alien would be required
to list the U.S. employer's name and supply its E-Verify Company
Identification Number. This new requirement would increase the time
burden on the population of aliens applying for renewal of employment
authorization.
---------------------------------------------------------------------------
\267\ Supporting evidence includes, but is not limited to, pay
stubs, an IRS transcript for the most recent tax year, Form W-2
series or Form 1099 series for the most recent tax year, evidence of
the value of the alien's assets such as the appraised value of a
home, utility bills, credit card statements, bank statements, and
evidence of claimed income including alimony, child support, and
dividends.
\268\ See PRA Supporting Statement for USCIS Form I-765
instructions (OMB control number 1615-0040). The PRA Supporting
Statement can be found at page 25 of the form instructions https://www.uscis.gov/sites/default/files/document/forms/i-765instr.pdf
(last updated Aug. 28, 2024).
---------------------------------------------------------------------------
DHS estimates the time burden for completing Form I-765 is 4.38
hours.\268\ For aliens granted deferred action who apply for employment
authorization after the effective date of this rule
[[Page 34444]]
should it be finalized, this proposed rule would increase the time
burden of Form I-765 by 30 minutes (0.5 hours) for a total of 4.88
hours.\269\ The increased time burden is due to the proposed regulatory
requirement that aliens be employed by a U.S. employer who is a
participant in good standing in E-Verify to be eligible for a renewal
of employment authorization. This change would increase the opportunity
cost of time for each application by approximately $10.13 based on the
effective minimum hourly compensation and by about $22.83 based on the
average compensation for all occupations.\270\
---------------------------------------------------------------------------
\269\ The additional 30 minutes is an average estimate across
all respondents completing Form I-765 to review additional language
in the instructions and gather required supporting documentation.
\270\ Calculations: 0.5 (burden hours) x $20.26 (effective
minimum hourly wage for 1 hour of work) = $10.13 (rounded). 0.5
(burden hours) x $45.65 (average wage for all occupations for 1 hour
of work) = $22.83 (rounded).
---------------------------------------------------------------------------
Aliens granted deferred action, who are eligible and apply for
employment authorization, are currently required to complete and submit
Form I-765WS. The estimated time burden for completing Form I-765WS is
currently 30 minutes (0.5 hours) per response.\271\ However, due to the
proposed regulatory requirement that aliens provide supplementary
documentation for their financial records reported in Form I-765WS, the
time burden will increase 30 minutes (0.5 hours), making the new time
burden to complete the form 1 hour. For aliens granted deferred action
who continue to be eligible and apply for employment authorization
after the effective date of the rule should it be finalized, the
proposed rule would increase the opportunity cost of time for each
application by approximately $10.13 based on the effective minimum
hourly compensation and by about $22.83 based on the average
compensation for all occupations.\272\ Combining the new costs of
completing Form I-765 and Form I-765WS, the total per alien increased
time burden would add costs of $20.26 and $45.65 at the respective
lower and upper bound compensation rates.\273\
---------------------------------------------------------------------------
\271\ See PRA Supporting Statement for USCIS Form I-765
instructions (OMB control number 1615-0040). The PRA Supporting
Statement can be found at page 25 of the form instructions https://www.uscis.gov/sites/default/files/document/forms/i-765instr.pdf
(last updated Aug. 28, 2024).
\272\ Calculations: 0.5 (burden hours) x $20.26 (effective
minimum hourly wage for 1 hour of work) = $10.13 (rounded). 0.5
(burden hours) x $45.65 (average wage for all occupations for 1 hour
of work) = $22.83 (rounded).
\273\ Calculations 1.0 hour (0.5 additional I-765 burden hours +
0.5 hours to file I-765WS) x $20.26 = $20.26; Calculations 1.0 hour
(0.5 additional I-765 burden hours + 0.5 hours to file I-765WS) x
$45.65 = $45.65.
---------------------------------------------------------------------------
Table V.28 shows the additional filing opportunity cost of time for
filing Form I-765 and Form I-765WS for the two population ranges for
initial and renewal receipts. Table V.28(A) shows cost estimates for
the lower and upper bound range of renewal Form I-765 receipts based on
the lower bound additional opportunity cost of time of $20.26. The
lower and upper bound projected receipts in Columns B and D are the
lower and upper bound approvals under this rule from Table V.15 in the
(c)(14) ``Population'' section. The total costs for Columns C and E
provide the range of undiscounted costs for the lower bound
compensation. Similarly, Table V.28(B) repeats the estimates for the
lower and upper bound range of renewal receipts based on the upper
bound additional opportunity cost of time of $45.65.
[[Page 34445]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.057
[[Page 34446]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.058
As indicated in the table, the estimated total opportunity costs of
time incurred as a result of the increased time burden for completing
the forms over the 10-year period from FY 2025 through FY 2034 would
range from about $2.2 million to $8.4 million. Annualized at a 7
percent discount rate, the estimated additional costs to complete Forms
I-765 and I-765WS would range from $235,496 to $897,077 (Table V.30).
Annualized at a 3 percent discount rate, the estimated additional costs
to complete Forms I-765 and I-765WS would range from $227,734 to
$866,282 (Table V.30).
iv. Taxes
This proposed rule could reduce taxes paid to the Federal
Government (a transfer payment) in the short term. During the period of
vacancy for a job that could be (initial) or formerly (renewal) held by
the (c)(14) alien worker, the Federal Government would not be
collecting taxes.
If businesses cannot find labor for the positions the affected
aliens who are no longer eligible for work authorization would have
occupied, then the unperformed labor would result in a reduction in
taxes from employers and employees to governments. Accordingly, the
lost earnings derived in the (c)(14) ``Earnings'' section will
contribute to such a reduction in taxes paid.
DHS uses the same potential contributory effects on employment
taxes, namely Medicare and Social Security, as described in the (c)(18)
``Taxes'' section for this analysis. DHS estimates the tax impacts on
the unburdened earnings basis. We calculate this by multiplying the
stabilized earnings by the employment tax rate of 15.3 percent and
dividing the resulting product by the benefits burden multiple of
1.45.\274\
---------------------------------------------------------------------------
\274\ 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.
The benefits-to-wage multiplier is calculated as follows: (Total
Employee Compensation per hour) / (Wages and Salaries per hour) =
$46.84 / $32.25 = 1.45 (rounded). See BLS, Economic News Release,
``Employer Costs for Employee Compensation--September 2024,'' Table
1. Employer costs for employer compensation by ownership, p. 4,
https://www.bls.gov/news.release/archives/ecec_12172024.pdf.
---------------------------------------------------------------------------
To estimate the range of employment tax losses, we take the
estimated lost earnings for the range of initial and renewal projected
filers at the prevailing and average compensation rates from Table
V.26, columns G and H, multiply each year by 15.3 percent, and divide
by 1.45. These calculations are shown in Table V.29. The actual value
of tax impacts would 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.
[[Page 34447]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.059
[[Page 34448]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.060
Lost earnings, which DHS estimates could range between $1.3 billion
to $8.7 billion over the 10-year period from FY 2025 through FY
2034,\275\ would result in corresponding reduction in employment taxes
or transfers ranging between $133.9 million and $920.7 million.\276\
Annualized at a 7 percent discount rate, employment tax losses would
range from approximately $14.3 million to $98.4 million (Table V.30).
Annualized at a 3 percent discount rate, the reduction in employment
taxes would range from approximately $13.8 million to $94.8 million
(Table V.30). Again, depending on the circumstances of the employee,
there could be additional Federal income tax losses not estimated here.
There may also be State and local income tax losses that would vary
according to the jurisdiction, but that DHS is unable to quantify. We
note that the potential decrease in tax transfers only applies to the
compensation impacts, not to labor turnover costs, costs associated
with form time burdens, or implementation and use of E-Verify.
---------------------------------------------------------------------------
\275\ Calculations (data from Table V.26): $1,173,704,112 (10-
year total initial upper bound costs) + $95,492,448 (10-year total
renewal upper bound costs) = $1,269,196,560 (minimum 10-year total
lower bound costs); $8,389,541,600 (10-year total initial upper
bound costs) + $335,940,000 (10-year total renewal upper bound
costs) = $8,725,481,600 (maximum 10-year total upper bound costs).
\276\ Calculations: $123,846,019 (10-year total initial lower
bound costs) + $10,076,099 (10-year total renewal lower bound costs)
= $133,922,118 (minimum 10-year total lower bound costs);
$885,241,286 (10-year total initial upper bound costs) + $35,447,463
(10-year total renewal upper bound costs) = $920,688,749 (maximum
10-year total upper bound costs).
---------------------------------------------------------------------------
v. Total
In the previous (c)(14) ``Monetized Impact Analysis'' sections we
presented estimates of the impacts of the proposed rule germane to lost
labor earnings, biometrics submission, increased time burdens for
completing forms, and transfer payments in the form of reduced taxes.
The total impacts are aggregated by summing the total initial and
renewal impacts from Tables V.26 through V.29 in terms of the maximum
and minimum estimates. Therefore, Table V.30 shows the range of
estimated monetized costs of the proposed rule, where Table V.30(A)
presents the maximum estimates, and Table V.30(B) presents the minimum
estimates. For each subsection of the table, the 10-year totals are
provided in undiscounted 10-year total values, as well as the present
value costs and annualized costs discounted at 7 percent and 3 percent.
[[Page 34449]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.061
[[Page 34450]]
As Table V.30 shows, the projected 10-year monetized undiscounted
costs of the proposed rule for the period FY 2025 through FY 2034 could
be as high as about $8.8 billion with a minimum cost estimate of $1.3
billion under the assumptions relied on.\277\ The majority of the costs
of this rule would result from lost labor earnings, if companies are
unable to find reasonable labor substitutes for the positions that the
aliens granted deferred action would have filled. DHS notes there are
unquantified costs not reflected in the estimates above.
---------------------------------------------------------------------------
\277\ Calculations: $1,269,196,560 (lost labor earnings costs) +
$11,966,937 (biometrics costs) + $2,217,193 (time burden to complete
forms costs) = $1,283,380,690 minimum undiscounted 10-year total;
$8,725,481,600 (lost labor earnings costs) + $37,377,136 (biometrics
costs) + $8,424,345 (time burden to complete forms costs) =
$8,771,283,081 maximum undiscounted 10-year total.
---------------------------------------------------------------------------
c. Discretionary Employment Authorization for Aliens Paroled Into the
United States ((c)(11))
i. Earnings
DHS has no information on wages or occupations of aliens who have
been granted parole, at the initial or renewal stage, since these alien
workers obtain an open-market EAD that does not include or require any
data on their employment. Because many of the aliens applying for
(c)(11) would have many of the same characteristics as aliens applying
for (c)(18), such as being relatively new entrants to the labor force
and having a validity period not exceeding one year, etc., DHS used the
same wage and earnings estimates described in the (c)(18) ``Earnings''
section. For each alien, the estimated annual lower bound earnings used
is $36,144 and the upper bound earnings is $81,440.
Table V.31 shows the two estimated population ranges for initial
and renewal approvals for the two ranges of wage estimates for aliens
granted parole and the corresponding potential lost earnings. Regarding
the estimated approvals under this rule reported in Columns A and C and
the estimated baseline filers without this rule reported in Column E,
the assessments of possible impacts rely on the assumption that
everyone who was approved for employment authorization under the
(c)(11) category entered the labor force. This assumption is
justifiable because aliens, with few exceptions, generally would not
have expended the direct filing (for the pertinent employment
authorization categories in which there is a filing fee) and time-
related opportunity costs associated with applying for employment
authorization if the aliens did not expect to recoup an economic
benefit. Realistically, however, aliens might not be employed for any
number of other reasons not specifically relevant to this action.
The national unemployment rate as of December 2024 was 4.1
percent.\278\ There is constant and considerable job turnover in the
labor market even when the unemployment rate is low. Aliens 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 project scaled populations (from Table V.20: initial and renewal
baseline receipts, lower bound initial and renewal approvals under this
rule, and upper bound initial and renewal approvals under this rule) in
Table V.31 Columns A, C, and E to account for current unemployment,
which is conducted by integrating the employment rate, as unity minus
0.041, to arrive at 0.959.\279\
---------------------------------------------------------------------------
\278\ BLS, Economic News Release, ``The Employment Situation--
December 2024,'' https://www.bls.gov/news.release/archives/empsit_01102025.pdf.
\279\ Calculations examples:
Table V.31(A), Column A (FY 2025) = 36,556 x 0.959 = 35,057;
Table V.31(A), Column C (FY 2025) = 36,926 x 0.959 = 35,412;
Table V.31(A), Column E (FY 2025) = 39,352 x 0.959 = 37,739;
Table V.31(C), Column A (FY 2025) = 2,913 x 0.959 = 2,794;
Table V.31(C), Column C (FY 2025) = 3,336 x 0.959 = 3,199;
Table V.31(C), Column E (FY 2025) = 3,464 x 0.959 = 3,322.
---------------------------------------------------------------------------
Table V.31(A) shows cost estimates for the lower and upper bound
range of initial employment authorization approvals based on the lower
bound wage annual earnings of $36,144. The total earnings for each
population under the rule based on the projections developed in the
(c)(11) ``Population'' section is reported in Columns B, D and F.
Columns G and H present the potential lost earnings, by subtracting,
the potential earnings from rule populations (Columns B and D) from the
current baseline (Column F). Similarly, Table V.31(B) repeats the
estimates for the lower and upper bound range of initial employment
authorization approvals based on the upper bound (average) wage annual
earnings of $81,440. Tables V.31(C) and V.31(D) repeat the estimates
from Table V.31(A) and V.31(B) for the lower and upper bound ranges of
renewal employment authorization approvals based on the lower and upper
bound wage annual earnings, respectively.
[[Page 34451]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.062
[[Page 34452]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.063
DHS uses the lost compensation to aliens granted parole as a
measure of the overall impact of removing eligibility for employment
authorization under the (c)(11) category--either as distributional
impacts (transfers) or as a proxy for costs to businesses for lost
productivity. It does not include additional costs to businesses for
lost profits and opportunity costs or the distributional impacts for
those in an alien's support network. However, these costs will be
discussed further in this analysis. As shown in Table V.31, the
potential lost earnings depend on the number of aliens granted parole
who remain eligible for employment authorization and continue to work,
as well as their wage rate. Over the 10-year period from FY 2025
through FY 2034, the total lost earnings would range from $373.6
million to $1.2 billion.\280\ Annualized at
[[Page 34453]]
a 7 percent discount rate, lost earnings for initial and renewal EAD
holders would range from $42.0 million to $132.4 million (Table
V.35).\281\ Annualized at a 3 percent discount rate, lost earnings for
initial and renewal EAD holders would range from $39.4 million to
$125.0 million (Table V.35).
---------------------------------------------------------------------------
\280\ Calculations: $342,319,824 (10-year total initial upper
bound costs) + $31,264,560 (10-year total renewal upper bound costs)
= $373,584,384 (minimum 10-year total lower bound costs);
$888,999,040 (10-year total initial upper bound costs) +
$303,852,640 (10-year total renewal upper bound costs) =
$1,192,851,680 (maximum 10-year total upper bound costs).
---------------------------------------------------------------------------
EAD holders who would no longer be eligible to renew their
employment authorization under the proposed eligibility criteria in
this rule would incur lost earnings. Additionally, DHS acknowledges the
potential for additional lost compensation to aliens applying for
renewal if their employers are not currently enrolled in E-Verify and
opt not to enroll in the E-Verify program. In such cases, aliens
applying for renewal could lose earnings if they are unable to find
employment with an employer who participates in E-Verify.
---------------------------------------------------------------------------
\281\ An important assumption relied upon in this analysis is
that each holder of an approved EAD has entered the labor force and
is working (when the rule becomes effective). DHS relies on this
assumption on the grounds that aliens would not have expended the
direct filing and time-related opportunity costs of applying for an
EAD if they did not intend to recoup an economic benefit from doing
so. In reality, some EAD holders may not be employed for any number
of reasons--including normal labor market frictions--that have
nothing to do with this rule. In addition, some aliens may seek an
EAD for purposes of paper documentation and may not intend to work.
---------------------------------------------------------------------------
DHS recognizes that, excluding the effects of inflation, earnings
generally rise over time and the earnings of EAD holders could be
higher in the future than estimated in this analysis. Moreover, since
employment authorization renewals necessarily follow initial employment
authorization approvals, in time, wages earned and, hence total
compensation, could be higher for renewals. Accordingly, this effect
could have a downward bias in the estimate of earnings losses. However,
we see no tractable way at present to incorporate this possibility into
the quantified estimates.
In addition to the above quantified impacts, there could be
qualitative impacts for aliens granted parole who would no longer be
eligible for employment authorization. For the (c)(11) population that
would not be able to renew their employment authorization or obtain an
initial employment authorization, there would likely be an impact in
terms of lost income, which could pose economic hardships. Members of
this population may need to rely on their support networks for
financial and social assistance, which could involve, but may not be
limited to, family members and friends, religious and charitable
organizations, private non-profit providers, State and local
governments, and NGOs. DHS believes that the immediate indirect impact
of this rule to an alien's support network is likely not significantly
more than the wages and benefits the alien would have earned without
this rule.
ii. Biometrics
Current DHS regulations provide general authority for USCIS to
require the submission of biometrics from any alien filing for an
immigration benefit on a case-by-case basis. When USCIS determines that
an alien applying for (c)(11) is required to submit biometrics, they
receive a biometrics services appointment notice from USCIS to submit
biometrics at an ASC to assist in identity verification and facilitate
(c)(11) EAD card production among other things.\282\ DHS is proposing
to codify the requirement to submit biometrics, where all aliens who
file Form I-765 under the (c)(11) category--for both initial and
renewal applications--would be required to appear at an ASC and submit
biometrics. DHS proposes to use the biometrics submitted by aliens
applying for (c)(11) to screen for criminal history.\283\ Because
aliens applying for (c)(11) would likely experience similar costs to
those outlined in the (c)(18) ``Biometrics'' section, there is a per
alien biometrics submission cost of $109.35 and $202.54 at the
respective lower and upper wage rates for this analysis.
---------------------------------------------------------------------------
\282\ USCIS was previously authorized to collect an $85
biometric services fee. However, the recently promulgated fee rule
incorporated the biometric services costs into the underlying
immigration benefit request fees for which biometric services are
applicable and maintained a separate $30 biometric services fee for
other certain benefit requests. See 89 FR 6194 (Jan. 31, 2024) (Fee
Rule). Thus, the populations of aliens applying for I-765 in this
analysis are not required to pay a separate biometric services fee.
\283\ The cost to screen for criminal history is covered by the
Form I-765 filing fee which incorporates the biometric services
costs.
---------------------------------------------------------------------------
Table V.32 shows the two population ranges for initial and renewal
receipts for the two ranges of wage estimates for aliens granted parole
and the corresponding total cost to submit biometrics. Table V.32(A)
shows cost estimates for the lower and upper bound range of initial
Form I-765 receipts at the lower bound submission cost of $109.35. The
lower and upper bound projected biometrics receipts in Columns B and D
are the lower and upper bound approvals under this rule from Table V.20
in the (c)(11) ``Population'' section.\284\ The total costs for Columns
C and E provide the range of undiscounted costs for the lower bound.
Similarly, Table V.32(B) repeats the estimates for the lower and upper
bound range of initial Form I-765 receipts based on the upper bound
submission cost of $202.54. Tables V.32(C) and V.32(D) repeat these
estimates for the lower and upper bound ranges of renewal Form I-765
receipts based on the lower and upper bound submission costs,
respectively.
---------------------------------------------------------------------------
\284\ Using the projected lower and upper bound approvals under
this rule serves as a reasonable proxy for the projected number of
biometric receipts under this rule proposes to codify the
requirement to submit biometrics.
---------------------------------------------------------------------------
[[Page 34454]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.064
[[Page 34455]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.065
As shown in Table V.32, the cost to submit biometrics depends on
the number of aliens granted parole who apply for employment
authorization and their wage rate. Over the 10-year period from FY 2025
through FY 2034, the estimated total cost to submit biometrics would
range from $18.5 million to $35.2 million.\285\ Annualized at a 7
percent discount rate, the estimated costs to submit biometrics would
range from $2.1 million to $3.9 million (Table V.35). Annualized at a 3
percent discount rate, the estimated costs to submit biometrics would
range from $1.9 million to $3.7 million (Table V.35). DHS recognizes
that the estimates presented may be an overestimate, as a portion of
the population already receives a biometrics services appointment
notice and completes biometrics submission. Under the new requirement
of this proposed rule, this portion of the population would continue to
complete biometrics, and thus not incur new costs.
---------------------------------------------------------------------------
\285\ Calculations: $16,268,437 (10-year total initial lower
bound costs) + $2,252,172 (10-year total renewal lower bound costs)
= $18,520,609 (minimum 10-year total lower bound costs); $30,437,711
(10-year total initial upper bound costs) + $4,777,108 (10-year
total renewal upper bound costs) = $35,214,819 (maximum 10-year
total upper bound costs).
---------------------------------------------------------------------------
iii. Forms
For aliens who remain eligible to be employment authorized, the
proposed rule would increase the time burden on the population of
aliens applying for employment authorization. This rule also proposes
to add filing procedures and evidentiary requirements for aliens
granted parole who are seeking initial employment authorization or
renewing employment authorization. The proposed new requirements
include submitting Form I-765WS along with supporting documentation
\286\ to establish the alien's economic necessity for employment and,
for aliens applying for renewal only, the name of the alien's U.S.
employer as listed in E-Verify and that employer's E-Verify Company
Identification Number.
---------------------------------------------------------------------------
\286\ Supporting evidence includes, but is not limited to, pay
stubs, an IRS transcript for the most recent tax year, Form W-2
series or Form 1099 series for the most recent tax year, evidence of
the value of the alien's assets such as the appraised value of a
home, utility bills, credit card statements, bank statements, and
evidence of claimed income including alimony, child support, and
dividends.
\287\ See PRA Supporting Statement for USCIS Form I-765
instructions (OMB control number 1615-0040). The PRA Supporting
Statement can be found at page 25 of the form instructions https://www.uscis.gov/sites/default/files/document/forms/i-765instr.pdf
(last updated Aug. 28, 2024).>
\288\ The additional 30 minutes is an average estimate across
all respondents completing Form I-765 to review additional language
in the instructions and gather required supporting documentation.
---------------------------------------------------------------------------
DHS estimates the time burden for completing Form I-765 is 4.38
hours.\287\ For aliens granted parole who apply for employment
authorization after the effective date of this rule should it be
finalized, this proposed rule would increase the time burden of Form I-
765 by 30 minutes (0.5 hours) for a total of 4.88 hours.\288\ The
increased time burden is due to the proposed regulatory requirement
that aliens be employed by a U.S. employer who is a participant in good
standing in E-Verify to be eligible for a renewal of employment
authorization. This change would increase the opportunity cost of time
for each application by approximately $10.13 based on the effective
minimum hourly
[[Page 34456]]
compensation and by about $22.83 based on the average compensation for
all occupations.\289\
---------------------------------------------------------------------------
\289\ Calculations: 0.5 (burden hours) x $20.26 (effective
minimum hourly wage for 1 hour of work) = $10.13 (rounded). 0.5
(burden hours) x $45.65 (average wage for all occupations for 1 hour
of work) = $22.83 (rounded).
---------------------------------------------------------------------------
This proposed rule would also make it a requirement to submit Form
I-765WS for aliens applying for employment authorization under the
(c)(11) category. Currently, proving the existence of economic
necessity to be employed is listed as a discretionary factor for
consideration, but it is not a requirement under the (c)(11) category.
In this proposed rule, DHS would make this a mandatory requirement. DHS
estimates the current time burden for completing Form I-765WS is 30
minutes (0.5 hours).\290\ However, due to the proposed regulatory
requirement that aliens provide supplementary documentation for their
financial records reported in Form I-765WS, the time burden will
increase 30 minutes (0.5 hours), making the new time burden to complete
the form 1 hour. For aliens granted parole who continue to be eligible
and apply for employment authorization after the effective date of the
rule should it be finalized, the proposed rule would increase the
opportunity cost of time for each alien by $20.26 based on the
effective minimum hourly compensation and $45.65 based on the average
compensation for all occupations.\291\
---------------------------------------------------------------------------
\290\ See PRA Supporting Statement for USCIS Form I-765
instructions (OMB control number 1615-0040). The PRA Supporting
Statement can be found at page 25 of the form instructions https://www.uscis.gov/sites/default/files/document/forms/i-765instr.pdf
(last updated Aug. 28, 2024).
\291\ Calculations: 1.0 hour (time to file I-765WS) x $20.26
(effective minimum hourly compensation for 1 hour of work) = $20.26;
1.0 hour (time to file I-765WS) x $45.65 (average compensation for
all occupations for 1 hour of work) = $45.65.
---------------------------------------------------------------------------
Additionally, this proposed rule would impact the reporting burden
for Form I-131, a form aliens seeking employment authorization under
the (c)(11) category are currently required to complete. Due to the
proposed regulatory requirements in this rule that aliens be employed
by a U.S. employer who is a participant in good standing in E-Verify to
be eligible for a renewal of employment authorization and that aliens
provide supplementary documentation for their financial records
reported in Form I-765WS, Form I-131 would be updated to reflect these
new requirements. The time burden to complete Form I-131 is currently
2.917 hours but would increase to 3.167 hours under the proposed
regulatory changes, a 15-minute (0.25 hour) difference. The opportunity
cost of time for each alien due to these changes would increase by
$5.07 based on the effective minimum hourly compensation and $11.41
based on the average compensation for all occupations.\292\ Combining
the new costs of the Forms I-765, I-765WS, and I-131, the total per
alien increased time burden would add costs of $35.46 and $79.89 at the
respective lower and upper bound compensation rates.\293\
---------------------------------------------------------------------------
\292\ Calculations: 0.25 hour (time to file I-131) x $20.26
(effective minimum hourly compensation for 1 hour of work) = $5.07;
0.25 hour (time to file I-131) x $45.65 (average compensation for
all occupations for 1 hour of work) = $11.41.
\293\ Calculations: 1.75 hours (0.5 additional I-765 burden
hours + 1.0 hour to file I-765WS + 0.25 hour to file I-131) x $20.26
= $35.46; 1.75 hours (0.5 additional I-765 burden hours + 1.0 hour
to file I-765WS + 0.25 hour to file I-131) x $45.65 = $79.89.
---------------------------------------------------------------------------
Table V.33 shows the additional opportunity cost of time for filing
Form I-765, Form I-765WS, and Form I-131 for the two population ranges
for initial and renewal receipts. Table V.33(A) shows cost estimates
for the lower and upper bound range of initial Form I-765 receipts
based on the lower bound additional opportunity cost of time of $35.46.
The lower and upper bound projected forms receipts in Columns B and D
are the lower and upper bound approvals under this rule from Table V.20
in the (c)(11) ``Population'' section. The total costs for Columns C
and E provide the range of undiscounted costs for the lower bound
compensation. Similarly, Table V.33(B) repeats the estimates for the
lower and upper bound range of initial EAD receipts based on the upper
bound additional opportunity cost of time of $79.89. Tables V.33(C) and
V.33(D) repeat on the lower and upper bound wage opportunity cost of
time, respectively.
[[Page 34457]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.066
[[Page 34458]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.067
As indicated in the table, the estimated total opportunity costs of
time incurred as a result of the increased time burden for completing
the forms over the 10-year period from FY 2025 to FY 2034 would range
from about $6.0 million to $13.9 million.\294\ Annualized at a 7
percent discount rate, the estimated additional costs to complete Form
I-765, Form I-765WS, and Form I-131 would range from $673,757 to $1.6
million (Table V.35). Annualized at a 3 percent discount rate, the
estimated additional costs to complete Form I-765, Form I-765WS, and
Form I-131 would range from $632,291 to $1.5 million (Table V.35).
---------------------------------------------------------------------------
\294\ Calculations: $5,275,527 (10-year total initial lower
bound costs) + $730,335 (10-year total renewal lower bound costs) =
$6,005,862 (minimum 10-year total lower bound costs); $12,005,869
(10-year total initial upper bound costs) + $1,884,284 (10-year
total renewal upper bound costs) = $13,890,153 (maximum 10-year
total upper bound costs).
---------------------------------------------------------------------------
iv. Taxes
This proposed rule could reduce taxes paid to the Federal
Government (a transfer payment) in the short term. During the period of
vacancy for a job that could be (initial) or formerly (renewal) held by
the (c)(11) alien worker, the Federal Government would not be
collecting taxes.
If businesses cannot find labor for the positions the affected
aliens who are no longer eligible for work authorization would have
occupied, then the unperformed labor would result in a reduction in
taxes from employers and employees to governments. Accordingly, the
lost earnings derived in the (c)(11) ``Earnings'' section will
contribute to such a reduction in taxes paid.
DHS uses the same potential contributory effects on employment
taxes, namely Medicare and Social Security, as described in the (c)(18)
``Taxes'' section for this analysis. DHS estimates the tax impacts on
the unburdened earnings basis. We calculate this by multiplying the
stabilized earnings by the employment tax rate of 15.3 percent and
dividing the resulting product by the benefits burden multiple of
1.45.\295\
---------------------------------------------------------------------------
\295\ 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.
---------------------------------------------------------------------------
To estimate the range of employment tax losses, we take the
estimated lost earnings for the range of initial and renewal projected
filers at the prevailing and average compensation rates from Table
V.31, columns G and H, multiply each year by 15.3 percent, and divide
by 1.45. These calculations are shown in Table V.34. The actual value
of tax impacts would 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.
BILLING CODE 9111-97-P
[[Page 34459]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.068
[[Page 34460]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.069
BILLING CODE 9111-97-C
Lost earnings, which DHS estimates could range between $373.6
million to $1.2 billion \296\ over the 10-year period from FY 2025
through FY 2034, would result in corresponding employment tax losses or
transfers ranging between $39.4 million and $125.9 million.\297\
Annualized at a 7 percent discount rate, employment tax losses would
range from approximately $4.4 million to $14.0 million (Table V.35).
Annualized at a 3 percent discount rate, employment tax losses would
range from approximately $4.2 million to $13.2 million (Table V.35).
Again, depending on the circumstances of the employee, there could be
additional Federal income tax losses not estimated here. There may also
be State and local income tax losses that would vary according to the
jurisdiction but that DHS is unable to quantify. We note that the
potential decrease in tax transfers only applies to the compensation
impacts, not to labor turnover costs, costs associated with the form
time burdens, or implementation and use of E-Verify.
---------------------------------------------------------------------------
\296\ Calculations (data from Table V.31): $342,319,824 (10-year
total initial upper bound costs) + $31,264,560 (10-year total
renewal upper bound costs) = $373,584,384 (minimum 10-year total
lower bound costs); $888,999,040 (10-year total initial upper bound
costs) + $303,852,640 (10-year total renewal upper bound costs) =
$1,192,851,680 (maximum 10-year total upper bound costs).
\297\ Calculations: $36,120,643 (10-year total initial lower
bound costs) + $3,298,949 (10-year total renewal lower bound costs)
= $39,419,592 (minimum 10-year total lower bound costs); $93,804,726
(10-year total initial upper bound costs) + $32,061,694 (10-year
total renewal upper bound costs) = $125,866,420 (maximum 10-year
total upper bound costs).
---------------------------------------------------------------------------
v. Total
In the previous (c)(11) ``Monetized Impact Analysis'' sections we
presented estimates of the impacts of the proposed rule germane to lost
labor earnings, biometrics submission, increased time burdens for
completing forms, and transfer payments in the form of reduced taxes.
The total impacts are aggregated by summing the total initial and
renewal impacts from Tables V.31 through V.34 in terms of the maximum
and minimum estimates. Therefore, Table V.35 shows the range of
estimated monetized costs of the proposed rule, where Table V.35(A)
presents the maximum estimates, and Table V.35(B) presents the minimum
estimates. For each subsection of the table, the 10-year totals are
provided in undiscounted 10-year total values, as well as the present
value costs and annualized costs discounted at 7 percent and 3 percent.
[[Page 34461]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.070
[[Page 34462]]
BILLING CODE 9111-97-C
As Table V.35 shows, the projected 10-year monetized undiscounted
costs of the proposed rule for the period FY 2025 through FY 2034 could
be as high as about $1.2 billion with a minimum cost estimate of $0.4
billion under the assumptions relied on.\298\ The majority of the costs
of this rule would result from lost labor earnings, if companies are
unable to find reasonable labor substitutes for the positions that the
aliens granted parole would have filled. DHS notes there are
unquantified costs not reflected in the estimates above.
---------------------------------------------------------------------------
\298\ Calculations: $373,584,384 (lost labor earnings costs) +
$18,520,609 (biometrics costs) + $6,005,862 (time burden to complete
forms costs) = $398,110,855 minimum undiscounted 10-year total;
$1,192,851,680 (lost labor earnings costs) + $35,214,819 (biometrics
costs) + $13,890,153 (time burden to complete forms costs) =
$1,241,956,652 maximum undiscounted 10-year total.
---------------------------------------------------------------------------
d. Grand Total
In the previous ``Monetized Impact Analysis'' sections, we
presented estimates of the impacts of the proposed rule germane to lost
labor earnings, biometrics submission, increased time burdens for
completing forms, and transfer payments in the form of reduced taxes
for the discretionary EADs discussed. The grand total impacts are
aggregated by summing the total initial and renewal impacts from Tables
V.25, V.30, and V.35 in terms of the maximum and minimum estimates.
Therefore, Table V.36 shows the range of estimated monetized costs of
the proposed rule, where Table V.36(A) presents the maximum estimates,
and Table V.36(B) presents the minimum estimates. For each subsection
of the table, the 10-year totals are provided in undiscounted 10-year
total values, as well as the present value costs and annualized costs
discounted at 7 percent and 3 percent.
[[Page 34463]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.071
BILLING CODE 9111-97-C
As Table V.36 shows, the grand total projected 10-year monetized
undiscounted costs of the proposed rule for the period FY 2025 through
FY 2034 could be as high as about $27.9 billion with a minimum cost
estimate of $9.1 billion under the assumptions relied
[[Page 34464]]
on.\299\ The majority of the costs of this rule would result from lost
labor earnings if companies are unable to find reasonable labor
substitutes for the position the aliens discussed in this proposed rule
would have filled. DHS notes there are unquantified costs not reflected
in the estimates above.
---------------------------------------------------------------------------
\299\ Calculations: $9,036,469,872 (lost labor earnings costs) +
$31,407,175 (biometrics costs) + $8,478,634 (time burden to complete
forms costs) = $9,076,355,681 minimum undiscounted 10-year total;
$27,788,712,480 (lost labor earnings costs) + $77,588,414
(biometrics costs) + $24,003,833 (time burden to complete forms
costs) = $27,890,304,727 maximum undiscounted 10-year total.
---------------------------------------------------------------------------
5. Costs to Employers
Companies may incur opportunity costs by having to choose the next
best alternative to filling a job a (c)(11), (c)(14), or (c)(18) alien
worker would have filled. DHS is unable to determine what an employer's
next best alternative may be for those companies. As a result, DHS does
not know the portion of overall impacts of this rule that are transfers
or costs.\300\ If companies can find replacement labor for the
positions the (c)(11), (c)(14), or (c)(18) alien worker would have
filled, removing employment authorization from these aliens would
result in primarily distributional effects in the form of transfers
from aliens to others that are currently in the U.S. labor force (or
workers induced to return to the labor market), possibly in the form of
additional work hours or overtime pay. DHS acknowledges that there may
be additional opportunity costs to employers, such as additional costs
associated with searching for new employees. If companies cannot find
reasonable substitutes for the labor the aliens would have provided,
removing employment authorization eligibility for these aliens would
primarily result in costs to those companies through lost productivity
and profits.
---------------------------------------------------------------------------
\300\ Transfer payments are monetary payments from one group to
another that do not affect total resources available to society. See
``OMB Regulatory Impact Analysis: A Primer'' pages 7 and 8 for
further discussion of transfer payments and distributional effects,
https://www.reginfo.gov/public/jsp/Utilities/circular-a-4_regulatory-impact-analysis-a-primer.pdf.
---------------------------------------------------------------------------
DHS anticipates that revising eligibility for aliens released on
OSUP, aliens granted deferred action, and aliens granted parole could
lead to a loss of employment resulting in turnover costs for employers.
Additionally, the proposed E-Verify requirement for aliens applying for
renewal would also result in costs to employers who are not currently
enrolled in the E-Verify program and would seek to retain their alien
worker(s). The population that could involve costs to employers
involves specifically the renewal population, and the development of
such impacts embodies two different provisions: (i) the provisions
regarding eligibility in general, and (ii) the E-Verify requirement for
aliens seeking to renew employment authorization.
a. Unquantified Turnover Costs
Some aliens who have final orders of removal but are temporarily
released from custody on an order of supervision would eventually be
out of the labor force even in the absence of this proposed rule. Since
these aliens have been ordered removed, the Federal Government makes
efforts to remove them from the United States on an ongoing basis
regardless of employment authorization. For aliens who would no longer
be eligible for employment authorization under this rule because the
aliens do not meet the proposed exception--DHS has not determined that
the removal of such aliens is impracticable because ICE has not
identified them as unable to obtain travel documents--this rule would
affect the timing of when such alien workers would be removed from the
labor force, which could vary.
Further, some aliens who have been granted deferred action and
aliens who have been granted parole would also eventually be out of the
labor force even in the absence of this proposed rule. For both
populations, the grant of deferred action and parole have limited
validity periods and can be terminated at any time at DHS discretion.
Additionally, for these aliens who would no longer be eligible for
employment authorization under this rule because the aliens do not meet
the proposed requirements, this rule would also affect the timing of
when such alien workers would be removed from the labor force, which
could vary.
This proposed rule would result in employers incurring labor
turnover costs earlier in comparison to the state of the world in the
absence of the proposed rule. Since the timing of when alien workers
would be removed from the labor force is variable regardless of whether
this proposed rule becomes final or not, DHS is unable to establish a
baseline estimate of the labor turnover costs employers currently
incur. In addition, DHS cannot quantify the labor turnover costs that
employers would incur earlier than they would otherwise be due to the
proposed rule because there is no way to know the timing for when
aliens would be removed.
b. Employer Costs of E-Verify Requirement for Aliens Applying for
Renewal
For aliens applying for renewal, employment authorization would
only be granted to aliens who continue to meet the exception (under
category (c)(18)), demonstrate economic necessity, do not have
subsequent criminal convictions, are employed by a U.S. employer who is
a participant in good standing in the E-Verify program, and establish
that the aliens warrant a favorable exercise of discretion. The E-
Verify program is a DHS web-based system that allows enrolled employers
to confirm the identity and eligibility of their employees to work in
the United States by electronically matching information provided by
employees on the Employment Eligibility Verification (Form I-9) against
records available to DHS and the SSA.\301\ DHS does not charge a fee
for employers to participate in the E-Verify Program and create cases
to confirm the identity and employment eligibility of newly hired
employees. Employment authorization renewal applications would be
denied for those aliens who cannot establish that he or she is employed
by a U.S. employer who is a participant in good standing in E-Verify
and the filing fee would not be refunded.\302\ DHS does not know the
number of aliens applying for renewal who would incur this cost once
the rule is final.
---------------------------------------------------------------------------
\301\ See E-Verify, https://www.e-verify.gov/.
\302\ The recently promulgated fee rule updated the fee for Form
I-765 to $470 for online filing and $520 for paper filing. See 89 FR
6194 (Jan. 31, 2024) (Fee Rule).
---------------------------------------------------------------------------
Although there is no fee to use E-Verify, this proposed requirement
would result in costs to newly enrolled employers. Employers who enroll
in the E-Verify program would incur startup enrollment or program
initiation costs as well as additional opportunity costs of time for
ongoing annual training for the E-Verify program. DHS assumes that
employers who are currently participating in the E-Verify program would
not incur these costs since they previously incurred enrollment costs
and would continue to participate in ongoing annual training regardless
of this proposed rule.\303\ Additionally, DHS expects that only newly
enrolled employers would incur new costs for verifying the identity and
work authorization of all of their newly hired
[[Page 34465]]
employees, including any new (c)(11), (c)(14), and/or (c)(18) workers
as a result of this proposed rule. For employers currently enrolled in
E-Verify who choose to hire a (c)(11), (c)(14), and/or (c)(18) alien
worker, the proposed rule would not cause such employers to incur new
costs since they already must use E-Verify for all newly hired
employees as of the date they signed the E-Verify MOU.\304\ Therefore,
with or without the proposed rule, an employer already enrolled in the
E-Verify program that chooses to hire a (c)(11), (c)(14), and/or
(c)(18) alien worker would incur the opportunity cost of time to verify
any newly hired employees.
---------------------------------------------------------------------------
\303\ Employers already participating in E-Verify likely already
complete ongoing annual training because they voluntarily chose to
enroll or because of rules or regulations beyond the scope of this
proposed rule. DHS anticipates that such employers would continue to
use E-Verify regardless of their decision to hire (c)(18), (c)(14),
and/or (c)(11) workers or not.
\304\ See E-Verify, ``Questions and Answers,'' https://www.e-verify.gov/about-e-verify/questions-and-answers?tid=All&page=0 (last
updated Sept. 15, 2022).
---------------------------------------------------------------------------
Data show that some employers currently use E-Verify to confirm the
identity and employment eligibility of (c)(11), (c)(14), and (c)(18)
alien workers. Further, the requirement to participate in the E-Verify
program is not new as certain employers are required to enroll in the
program as a condition of Federal contracting, or as a condition of
business licensing under State legislation or other applicable law or
regulation.\305\
---------------------------------------------------------------------------
\305\ Certain States (for example Alabama, Arizona, Mississippi,
and South Carolina) and certain Federal contracts subject to the
Federal Acquisition Regulation found at 48 CFR, Subpart 22.18
require the use of E-Verify.
---------------------------------------------------------------------------
To renew employment authorization, the proposed rule would require
that (c)(11), (c)(14), and (c)(18) alien workers be employed by or seek
to be employed by employers enrolled in E-Verify who are in good
standing. Therefore, the proposed rule would result in additional costs
for employers that hire these alien workers only if such employers are
not currently enrolled in the E-Verify program and who choose to retain
their (c)(11), (c)(14), and/or (c)(18) alien workers.
For employers that have hired or intend to hire (c)(11), (c)(14),
and/or (c)(18) alien workers but are not enrolled in the E-Verify
program, such employers would incur opportunity costs of time to
enroll. Participating in the E-Verify program and remaining in good
standing requires employers to enroll in the program online,\306\
electronically sign the associated MOU with DHS that sets the terms and
conditions of participation in the program and create E-Verify cases
for all newly hired employees. The MOU requires employers to abide by
lawful hiring procedures and to ensure that no employee will be
unfairly discriminated against as a result of E-Verify.\307\ If an
employer violates the terms of this agreement, it is grounds for
immediate termination from the program.\308\ Additionally, employers
are required to designate and register at least one person that serves
as an E-Verify administrator on their behalf.
---------------------------------------------------------------------------
\306\ See E-Verify, ``The Enrollment Process'' (May 17, 2024),
https://www.e-verify.gov/employers/enrolling-in-e-verify/the-enrollment-process.
\307\ An employer that discriminates in its use of E-Verify
based on an individual's citizenship status or national origin may
also violate the INA's anti-discrimination provision, at 8 U.S.C.
1324b.
\308\ See E-Verify, ``The E-Verify Memorandum of Understanding
for Employers,'' https://www.e-verify.gov/sites/default/files/everify/memos/MOUforEVerifyEmployer.pdf (last updated June 1, 2013).
---------------------------------------------------------------------------
For this analysis, DHS assumes that each employer participating in
the E-Verify program designates one human resources (HR) specialist to
manage the program on its behalf. Based on the most recent PRA
Information Collection Package for E-Verify, DHS estimates the time
burden for an HR specialist to undertake the tasks associated with the
E-Verify program. DHS estimates the time burden for an HR specialist to
complete the enrollment process is 2 hours 16 minutes (2.26 hours), on
average, to provide basic company information, review and sign the MOU,
take a new user training, and review the user guides.\309\ Once
enrolled in the E-Verify program, DHS estimates the time burden is 1
hour to complete ongoing annual training on new features and system
updates.\310\
---------------------------------------------------------------------------
\309\ The USCIS Office of Policy and Strategy (OPS), PRA
Compliance Branch estimates the average time burdens. See USCIS,
``E-Verify Program'' (OMB control number 1615-0092) (May 24, 2016),
https://www.regulations.gov/document?D=USCIS-2007-0023-0081. The PRA
Supporting Statement can be found under Question 12.
\310\ See USCIS, ``E-Verify Program'' (OMB control number 1615-
0092) (May 24, 2016), https://www.regulations.gov/document?D=USCIS-2007-0023-0081. The PRA Supporting Statement can be found under
Question 12.
---------------------------------------------------------------------------
Once enrolled in the E-Verify program, the employer is responsible
for ensuring that the employment eligibility verification process
adheres to the requirements of the MOU and the employer verifies that
all newly hired employees are employment authorized. After completing
Form I-9, the employer must enter the newly hired employee's
information in E-Verify where it is checked against records available
to SSA and DHS. After checking an employee's information against these
records, E-Verify returns the case processing results, which could
either automatically confirm the employee as employment authorized or
return a mismatch. Receiving a mismatch does not mean an employee is
not authorized to work in the United States; rather, it indicates there
is an initial system mismatch between the information the employer
entered in E-Verify from the employee's Form I-9 and the records
available to DHS or SSA. Employees receiving a mismatch have the option
to contest (take action) or not contest (not take action) to resolve
the DHS and/or SSA mismatch case result. E-Verify requires employers to
promptly inform the employee about the mismatch and provide
instructions for contesting it. The E-Verify website also provides
detailed information about contesting the mismatch.\311\
---------------------------------------------------------------------------
\311\ E-Verify, ``How to Process a Tentative Nonconfirmation
(Mismatch),'' https://www.e-verify.gov/employees/tentative-nonconfirmation-overview/how-to-correct-a-tentative-nonconfirmation
(last updated Sept. 15, 2022).
---------------------------------------------------------------------------
In the absence of specific population data on which entities would
continue to hire (c)(11), (c)(14), and/or (c)(18) alien workers, it is
only possible to calculate an estimated average unit cost for an
employer not currently participating in E-Verify to hire one renewal
alien worker. In this analysis, DHS uses an hourly compensation rate
for estimating the opportunity cost of time for an HR specialist. DHS
uses this occupation as a proxy for those who might prepare and
complete the verification for an employer. DHS notes that not all
employers may have an HR specialist, but rather some equivalent
occupation may prepare and complete the verification and create the E-
Verify case.
According to the most recent BLS data, the average hourly wage rate
for HR specialists is $36.57.\312\ DHS estimates the hourly
compensation rates by adjusting the average hourly wage rates by a
benefit-to-wage multiplier to account for the full cost of benefits,
such as paid leave, insurance, and retirement. Based on the most recent
report by the BLS on the average employers' costs for employee
compensation for all civilian workers in major occupational groups and
industries, DHS estimates that the benefits-to-wage multiplier is
1.45.\313\ Therefore, DHS calculates an average hourly compensation
rate of $53.03 for
[[Page 34466]]
HR specialists.\314\ Applying this average hourly compensation rate to
the estimated time burden of 2.26 hours for the enrollment process, DHS
estimates an average opportunity cost of time for a new employer to
enroll in E-Verify is $119.85.\315\ DHS assumes the estimated
opportunity cost of time to enroll in the E-Verify program is a one-
time cost to employers. In addition, DHS estimates the opportunity cost
of time associated with 1 hour of ongoing annual training for newly
enrolled entities would be $53.03 annually in the years following
enrollment.
---------------------------------------------------------------------------
\312\ See BLS, ``May 2023 National Occupational Employment and
Wage Estimates,'' ``United States,'' ``Human Resources Specialists''
(SOC #13-1071), https://www.bls.gov/oes/2023/May/oes_nat.htm#13-1071
(last updated Apr. 3, 2024).
\313\ The benefits-to-wage multiplier is calculated as follows:
(Total Employee Compensation per hour) / (Wages and Salaries per
hour) = $46.84 / $32.25 = 1.45 (rounded). See BLS, Economic News
Release, ``Employer Costs for Employee Compensation--September
2024,'' Table 1. Employer costs for employer compensation by
ownership, p. 4, https://www.bls.gov/news.release/archives/ecec_12172024.pdf.
\314\ Calculation: $36.57 average hourly wage rate for HR
specialists x 1.46 benefits-to-wage multiplier = $53.03 hourly
compensation.
\315\ Calculation: 2.26 hours for the enrollment process x
$53.03 total compensation wage rate for an HR specialist = $119.85.
---------------------------------------------------------------------------
Newly enrolled employers would also incur opportunity costs of time
to enter employee information into the E-Verify system to confirm their
identity and work authorization. DHS estimates the time burden for an
HR specialist to submit a case in E-Verify is 7.74 minutes (or 0.129
hours).\316\ Therefore, DHS estimates the opportunity cost of time
would be approximately $6.84 per case.\317\
---------------------------------------------------------------------------
\316\ See USCIS, ``E-Verify Program'' (OMB control number 1615-
0092) (May 24, 2016), https://www.regulations.gov/document?D=USCIS-2007-0023-0081. The PRA Supporting Statement can be found under
Question 12.
\317\ Calculation: 0.129 hours to submit a query x $53.03 total
compensation wage rate for an HR specialist = $6.84.
---------------------------------------------------------------------------
DHS estimates the total first year cost for a new employer to
enroll in E-Verify and create a single E-Verify case in the E-Verify
system would be approximately $126.69.\318\ In subsequent years, DHS
estimates newly-enrolled employers would incur costs of $59.87, at
minimum, to maintain their account and create one new E-Verify case for
their alien worker.\319\ DHS recognizes that the actual cost to newly-
enrolled employers of using E-Verify would be higher since case
submissions would also include all newly hired employees, not just
(c)(11), (c)(14), or (c)(18) alien workers. However, since DHS cannot
predict how many employees each employer would hire in the future, DHS
cannot estimate how many additional E-Verify cases an employer may
expect to create. Employers already enrolled in the E-Verify program
who choose to hire (c)(11), (c)(14), or (c)(18) alien workers in
subsequent years would incur costs even in the absence of this proposed
rule.
---------------------------------------------------------------------------
\318\ Calculation: $119.85 opportunity cost for a new entity to
enroll in E-Verify + $6.84 cost to submit a query into E-Verify =
$126.69.
\319\ Calculation: $53.03 1 hour of annual training + $6.84 cost
to submit a query into E-Verify = $59.87. E-Verify has a Work
Authorization Docs Expiring case alert that notifies employers that
an employee's EAD or Arrival-Departure Record (Form I-94) document
is expiring. The alert is a reminder for the employer to reverify
the employee. See E-Verify, ``Questions and Answers,'' https://www.e-verify.gov/about-e-verify/questions-and-answers?tid=All&page=0
(last updated Sept. 15, 2022).
---------------------------------------------------------------------------
Employers that are not currently participating in E-Verify face the
binary choice of participating in or not participating in the program.
If the employer who had hired a (c)(11), (c)(14), or (c)(18) alien
worker does not participate, the employer faces the potential for labor
turnover costs. If the employer does participate, the employer incurs
the cost of enrolling and participating in the program and implementing
the program requirements. On one hand, since the discretionary EADs
discussed in this proposed rule can be variable and some can be
terminated at any time at DHS discretion, there might be some
disincentive not to participate in E-Verify. However, as discussed in
the ``Population'' section, DHS cannot make reliable estimates of the
number of employers that would enroll and participate in E-Verify, and
as such, cannot estimate total costs germane to this implementation.
c. Turnover Costs to Employers Who Currently Hire Discretionary EAD
Holders
In order to properly account for costs involving employers who have
hired aliens who are discretionary EAD holders, DHS introduces the
costs applicable to discuss labor turnover and E-Verify in separate
segments. DHS anticipates this proposed rule would impose labor-related
turnover costs on U.S. employers who employ (c)(11), (c)(14), and/or
(c)(18) alien workers who would remain eligible under this rule but are
not enrolled in E-Verify and opt not to enroll. Employers would incur
labor turnover costs because these alien workers would remain eligible
for initial employment authorization under this rule but would not be
eligible to renew employment authorization since the alien workers
would be unable to establish that they are employed by a U.S. employer
who is a participant in good standing in E-Verify. As a result, alien
workers would no longer be able to work and presumably employers would
need to find a replacement worker.
For aliens who would remain eligible for employment authorization
in the (c)(18) category under this rule, the duration of time to remove
aliens on OSUP from the U.S. would likely be longer than average as DHS
has determined that removal for these aliens is impracticable because
all countries from which DHS has requested travel documents have
affirmatively declined to issue such documents. Therefore, employers
who do not use or are enrolled in E-Verify would incur turnover costs
in cases where their (c)(18) alien workers would remain eligible for
employment authorization under this rule. However, U.S. employers who
are not enrolled in E-Verify could avoid turnover costs by choosing to
enroll in the program. If an employer chooses to enroll in E-Verify,
the employer would instead incur the associated costs to enroll in the
system, submit cases (for all newly hired employees, not just (c)(18)
alien workers), and maintain their account.
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/or incentives), 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.\320\
---------------------------------------------------------------------------
\320\ For additional descriptions of the components of labor
turnover costs, see Holly Bengfort, ``Employee retention: The Real
Cost of Losing an Employee,'' PeopleKeep (Apr. 16, 2024), https://www.peoplekeep.com/blog/employee-retention-the-real-cost-of-losing-an-employee.
---------------------------------------------------------------------------
There are numerous studies and reports concerning labor turnover
costs available from Human Resource entities that are cited across
correspondent literature. Some focus on specific occupations,
industries, salary levels, and often measure turnover cost in slightly
different ways. Labor turnover
[[Page 34467]]
cost is generally reported as a share of annual earnings or an actual
cost per employee. Usually, these reports measure the more direct, or
``hard'' costs associated with turnover and not intangible effects,
such as worker morale or lost productivity. 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.\321\ DHS captures lost productivity--proxied by
estimated earnings to aliens--should employers not be able to
immediately find replacement labor for previously eligible aliens
applying for employment authorization who would have been granted work
authorization without this proposed rule. DHS requests public comments
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.
---------------------------------------------------------------------------
\321\ See Heather Boushey & Sarah Jane Glynn, ``There Are
Significant Business Costs to Replacing Employees,'' Center for
American Progress (Nov. 16, 2012), https://www.americanprogress.org/issues/economy/reports/2012/11/16/44464/there-are-significant-business-costs-to-replacing-employees/.
---------------------------------------------------------------------------
The CAP and other reports that we reviewed confirm three central
aspects of turnover cost: (1) that they vary substantially across
industries and jobs; (2) that they tend to grow (in absolute and
percentage terms) according to skill level and earnings; and (3) that
they are higher for salaried workers compared to hourly wage earners.
The report 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 replacement costs that can reach more than 100
percent of the salary--compared to jobs with low educational and
technical requirements.\322\ 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 on average $75,000 per year or less ($2012), turnover
costs 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.\323\
---------------------------------------------------------------------------
\322\ See Shane McFeely and Ben Wigert, ``This Fixable Problem
Costs U.S. Businesses $1 Trillion,'' Workplace (Mar. 13, 2019),
https://www.gallup.com/workplace/247391/fixable-problem-costs-businesses-trillion.aspx. See also Kate Heinz, ``The True Costs of
Employee Turnover,'' Built In (July 17, 2024), https://builtin.com/recruiting/cost-of-turnover.
\323\ See ``The Real Cost of Employee Turnover in 2021,''
Verstela (Nov. 4, 2020), https://www.verstela.com/blog/cost-of-employee-turnover/. See also Louie Andre, ``112 Employee Turnover
Statistics: 2021 Causes, Cost & Prevention Data,'' Finances Online,
https://financesonline.com/employee-turnover-statistics/#cost (last
updated Feb. 25, 2025).
\324\ See Kate Bahn and Carmen Sanchez Cumming, ``Improving U.S.
Labor Standards and the Quality of Jobs to Reduce the Costs of
Employee Turnover to U.S. Companies,'' Washington Center for
Equitable Growth (Dec. 2020), https://equitablegrowth.org/wp-content/uploads/2020/12/122120-turnover-costs-ib.pdf. The data are
found in the report's methodological appendix.
---------------------------------------------------------------------------
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-five studies on turnover costs.\324\ 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 introduced in the
(c)(18) ``Earnings'' section of this proposed rule. Twenty-seven
resulting data points were employed for the analysis (Table V.37). The
mean of 22.4 percent and the median of 16.6 percent of annual salary
are amenable to the metrics reported in the studies referenced above
and fall within a substantial range, from 2.1 percent to 68.7 percent
(Table V.38).
BILLING CODE 9111-97-P
[[Page 34468]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.072
[GRAPHIC] [TIFF OMITTED] TP05JN26.073
Additionally, the scatterplots presented in Figures V.1(A) and
V.1(B) with the fitted least squares line clearly reveal that turnover
cost is an increasing function of the annual earnings, with a
moderately strong correlation coefficient of 0.421.\325\ Figure V.1(A)
plots the cost as a percentage of salary, as this is how it is inputted
into the estimation, while Figure V.1(B) plots the cost in actual
dollars, for context.
---------------------------------------------------------------------------
\325\ The slope coefficient for the regression of costs against
salary is 5.2E-06. By multiplying this figure by 5,000 to obtain
0.026, it can be interpreted that a $5,000 increase in salary is
associated with a 2.6 percentage point increase in labor turnover
costs, on average, within the range of our data. The exact
probability of committing a type I error (p-value) for the slope
coefficient is 0.027, such that we can reject the hypothesis that
salary and turnover costs are not systemically related (or such that
the correlation in the particular data is due to randomness) with
more than 95 percent confidence.
---------------------------------------------------------------------------
Figure V.1(A): Relation Between Annual Salary and Turnover Cost (%)
[[Page 34469]]
[GRAPHIC] [TIFF OMITTED] TP05JN26.074
Figure V.1(B): Relation Between Annual Salary and Turnover Cost ($)
[GRAPHIC] [TIFF OMITTED] TP05JN26.075
BILLING CODE 9111-97-C
In the absence of specific data on which employers hire (c)(11),
(c)(14), and/or (c)(18) alien workers and use, or would enroll in, E-
Verify, it is only possible to calculate an estimated range of average
per employee turnover costs an employer not currently participating in
E-Verify could incur. In order to estimate labor turnover costs, DHS
uses estimated employee annual earnings of $36,144 based on the
effective minimum wage as a lower bound and $81,440 based on the
average wage developed previously in this analysis (see (c)(18)
``Earnings'' section) and an upper bound. DHS multiplied each of these
estimated employee annual earnings by 22.4 percent in accordance with
an average (mean) cost percent derived from the 2020 report by the
Washington Center for Equitable Growth (see Table V.38). Using annual
earnings based on the effective minimum wage (lower bound), DHS
estimates labor turnover costs would be approximately $8,096 per worker
and using the annual earnings based on the average wage (upper bound),
DHS estimates labor turnover costs would be approximately $18,243 per
worker.\326\ Turnover costs would be higher if a U.S. employer that
does not use or enroll in E-Verify employs more than one (c)(11),
(c)(14), and/or (c)(18) alien worker who would remain eligible under
this rule. DHS
[[Page 34470]]
recognizes that turnover costs would occur in the year an EAD expires
and, depending on the effective date of this rule should it become
finalized, employers who incur turnover costs may incur them in up to
two consecutive fiscal years.
---------------------------------------------------------------------------
\326\ Calculations: $36,144 x 0.224 = $8,096; $81,440 x 0.224 =
$18,243.
---------------------------------------------------------------------------
DHS is unable to predict how many employers would actually
participate in E-Verify in order to retain their (c)(11), (c)(14), and/
or (c)(18) alien workers or the total number of employment
authorizations employers would confirm through E-Verify should they
choose to participate. DHS assumes that employers would make a cost-
benefit decision between incurring labor turnover costs and incurring
the current and future costs to enroll and participate in E-Verify. DHS
recognizes that an employer that enrolls and participates in E-Verify
would confirm employment authorization for all new hires, not only
their alien workers. Unlike the development of the costs germane to
forgone earnings, in which DHS could at least deduce a range for the
population based on some limited data, doing so here would be
completely speculative, and we do not endeavor to rely on a range here.
6. Biometrics Costs to All Other Aliens Who Apply for Employment
Authorization
As noted in the preamble and discussed elsewhere, aliens applying
for employment authorization under Sec. 274a.12(c) must submit
biometrics in accordance with Sec. 103.16 of this chapter, with any
required fee. This includes all other (c) categories not discussed
earlier in this analysis.\327\ For this proposed rule, DHS is unable to
project population estimates with any precision for these other (c)
categories due to uncertainty regarding the status of some of the
populations. The administration's current immigration enforcement
priorities, including E.O. 14159 ``Protecting the American People
Against Invasion,'' may impact the populations of these other (c)
categories to varying degrees. Further, DHS recently published a
proposed rule, Employment Authorization Reform for Asylum Applicants
(``Asylum EAD Reform Rule''), addressing employment authorization for
aliens with pending applications for asylum under Sec. 274a.12(c)(8).
However, DHS acknowledges similar biometrics costs for aliens applying
for employment authorization under the other (c) categories as those
described in the ``Monetized Impact Analysis'' section. The estimated
cost for biometrics submission would range between $109.35 and $202.54
per alien.
---------------------------------------------------------------------------
\327\ All other categories include: (c)(1), (c)(2), (c)(3),
(c)(4), (c)(5), (c)(6), (c)(7), (c)(8), (c)(9), (c)(10), (c)(12),
(c)(16), (c)(17), (c)(19), (c)(20), (c)(21), (c)(22), (c)(24),
(c)(25), (c)(26), (c)(33), (c)(34), (c)(35), (c)(36), and (c)(40).
---------------------------------------------------------------------------
7. Potential Costs to the Federal Government
The INA provides for the collection of fees at a level that will
ensure recovery of the full costs of providing adjudication and
naturalization services, including administrative costs and services
provided without charge to certain aliens and petitioners. See section
286(m) of the INA, 8 U.S.C. 1356(m). DHS notes that USCIS establishes
its fees by assigning costs to an adjudication based on its relative
adjudication burden and use of USCIS resources. Fees are established at
an amount that is necessary to recover these assigned costs, such as
salaries and benefits for clerical positions, officers, and managerial
positions, plus an amount to recover unassigned overhead (e.g.,
facility rent, IT equipment and systems) and immigration benefits
provided without a fee charge. Consequently, since USCIS immigration
fees are based on resource expenditures related to the service in
question, USCIS uses the fee associated with an information collection
as a reasonable measure of the collection's costs to USCIS. Therefore,
DHS has established the fee for the adjudication of Form I-765,
Application for Employment Authorization, and the corresponding Form I-
765 Worksheet. DHS notes that the proposed rule may increase USCIS'
costs associated with adjudicating employment authorization requests
because of the requirement to submit supporting documentary evidence
when submitting Form I-765WS. USCIS currently does not charge a filing
fee for Form I-765WS. While a filing fee is not charged for this form,
the cost to USCIS is captured in the fee for Form I-765. Future
adjustments to the fee schedule may be necessary to recover the
additional operating costs and will be determined at USCIS' next
comprehensive biennial fee review.
8. Benefits
The benefits potentially realized by the proposed rule are
qualitative. DHS estimates that American workers could have a better
chance of obtaining jobs that some (c)(11), (c)(14), and (c)(18) alien
workers currently hold, as the proposed rule would reduce employment
authorization eligibility for these alien worker populations. This
proposed rule would limit employment authorization under the (c)(11),
(c)(14), and (c)(18) categories to better align with the DHS
enforcement mission and the Administration's immigration enforcement
priorities, including those outlined in E.O. 14159, Protecting the
American People Against Invasion, and the Administration's efforts to
strengthen protections of American workers.
In addition, E.O. 14159 entrusts DHS with the faithful execution of
existing immigration laws and enables DHS to ensure the successful
enforcement of final orders of removal to enhance public safety and
national security. Without this proposed rule, aliens with final orders
of removal could be incentivized to compete with American workers for
jobs and resources instead of complying with their removal order. The
proposed restriction on the ability to obtain work authorization may
increase incentives for aliens with final orders of removal to depart
the United States, which could decrease the amount of time aliens are
in this status and could save government resources expended while
aliens are temporarily released on an order of supervision and pending
repatriation. ICE oversees the monitoring and tracking of aliens on an
order of supervision as well as effectuates their removal from the
United States.\328\ Managing aliens temporarily released on an order of
supervision consumes DHS resources. Specifically, ICE must devote
resources to track and monitor the status of these aliens. This
includes conducting regular check-ins to ensure compliance with
conditions of release. These cases absorb scarce enforcement resources
that could be diverted to, among other things, identifying and
detaining criminal aliens. If fewer aliens with final orders of removal
on an order of supervision remain in the United States for an extended
period because this rule increases the incentives for them to depart,
then ICE is likely to spend fewer resources on monitoring and tracking
aliens on an order of supervision.
---------------------------------------------------------------------------
\328\ See ICE, ``Removal,'' https://www.ice.gov/remove/removal
(last updated Mar. 6, 2025); ICE, ``Enforcement and Removal
Operations,'' https://www.ice.gov/about-ice/ero (last updated Feb.
4, 2025).
---------------------------------------------------------------------------
This proposed rule would create a consistent policy for
adjudicating employment authorization applications for aliens who apply
for employment authorization under the (c)(11), (c)(14), and (c)18)
categories. Having a consistent policy on imposing restrictions on the
ability to obtain employment authorization could also incentivize
aliens who apply for employment authorization under the (c)(11) and
(c)(14) categories (and who
[[Page 34471]]
may no longer be eligible) to voluntarily depart the United States
earlier, thereby saving government resources to track and monitor these
aliens once their parole or deferred action expires.
Monetizing this benefit is not possible at this time. Although the
Federal Government makes efforts to remove these aliens from the United
States on an ongoing basis regardless of employment authorization,
there is no way to know the timing of when aliens would be removed, if
an alien would be motivated to self-deport or, ultimately, who would
execute the removal.
Additionally, the proposal to require aliens applying for
employment authorization under the (c)(11), (c)(14), and (c)(18)
categories to submit additional financial documentary evidence to
establish an economic necessity to work may reduce abuse and fraud in
the EAD program. Aliens would be required to submit Form I-765WS, which
requires submission of annual income, annual expenses, and a total
current value of an alien's assets, along with supporting financial
documentary evidence.\329\ The additional documentation alongside Form
I-765WS will provide a clear record of an alien's assets, creating
transparency of an alien's financial status, and thus enabling the
detection of irregularities in an alien's documentation. DHS is unable
to quantify the benefits that would result from an increase in the
required supporting financial documentation. Finally, the added
requirement that aliens be employed by a U.S. employer who is a
participant in good standing in E-Verify to remain eligible to renew
employment authorization, along with codifying biometrics as a
requirement for aliens applying under Sec. 274a.12(c), would ensure
that employers are hiring legally eligible alien workers and would
enable aliens to be vetted against government databases for criminal
records and verify their identity before issuing an EAD, which would
promote a consistent policy when granting employment authorization and
also uphold the integrity of the immigration system.
---------------------------------------------------------------------------
\329\ Supporting evidence includes, but is not limited to, pay
stubs, an IRS transcript for the most recent tax year, Form W-2
series or Form 1099 series for the most recent tax year, evidence of
the value of the alien's assets such as the appraised value of a
home, utility bills, credit card statements, bank statements, and
evidence of claimed income including alimony, child support, and
dividends.
---------------------------------------------------------------------------
9. Labor Market Overview
As discussed in the ``Population'' sections of this analysis, USCIS
anticipates approving somewhere between 37,933 and 106,053 Form I-765
applications annually from aliens with final orders of removal, aliens
granted deferred action, and aliens granted parole in the absence of
this proposed rule.\330\ The U.S. labor force consists of a total of
168,547,000 workers, according to recent data (Dec. 2024).\331\
Therefore, the maximum population affected by this proposed rule (about
106,053) represents 0.063 percent of the U.S. labor force, suggesting
that the number of potential workers no longer eligible for employment
authorization make up a very small percentage of the U.S. labor
market.\332\
---------------------------------------------------------------------------
\330\ Calculations:
4,136 (projected (c)(18) initial approvals FY 2034) + 16,052
(projected (c)(18) renewal approvals FY 2034) + 9,556 (projected
(c)(14) initial approvals FY 2034) + 2,676 (projected (c)(14)
renewal approvals FY 2034) + 3,878 (projected (c)(11) initial
approvals FY 2034) + 1,635 (projected (c)(11) renewal approvals FY
2034) = 37,933 (minimum projected annual approvals);
5,805 (projected (c)(18) initial approvals FY 2025) + 21,710
(projected (c)(18) renewal approvals FY 2025) + 29,887 (projected
(c)(14) initial approvals FY 2025) + 5,835 (projected (c)(14)
renewal approvals FY 2025) + 39,352 (projected (c)(11) initial
approvals FY 2025) + 3,464 (projected (c)(11) renewal approvals FY
2025) = 106,053 (maximum projected annual approvals).
\331\ BLS, Economic News Release, ``The Employment Situation--
December 2024, Summary Table A, Household Data, seasonally adjusted,
Civilian labor force,'' https://www.bls.gov/news.release/archives/empsit_01102025.pdf.
\332\ Calculation: 106,053 (maximum projected annual
discretionary EAD alien worker approvals / 168,547,000 (U.S. labor
force) = 0.00063 (rounded).
---------------------------------------------------------------------------
B. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA), Public Law 104-121 (Mar. 29, 1996), requires Federal
agencies to consider the potential impact of regulations on small
businesses, small governmental jurisdictions, and small organizations
during the development of their rules. The term ``small entities''
comprises small businesses, not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
or governmental jurisdictions with populations of less than
50,000.\333\
---------------------------------------------------------------------------
\333\ A small business is defined as any independently owned and
operated business not dominant in its field of operation that
qualifies as a small business per the Small Business Act, 15 U.S.C.
632.
---------------------------------------------------------------------------
This proposed rule is estimated to result in a reduction in the
number of aliens with final orders of removal--and are temporarily
released on an order of supervision except in cases where the alien
meets the exception under this proposed rule (i.e., removal is
impracticable because all countries from which DHS requested travel
documents have affirmatively declined to issue such documents)--aliens
granted deferred action, and aliens granted parole who are eligible for
employment authorization. DHS has estimated that the rule would cover
an upper bound population of about 106,053 aliens annually. As
previously explained, the provision being proposed may result in
forgone labor earnings for aliens with final orders of removal, aliens
granted deferred action, and aliens granted parole. This rule directly
regulates and impacts aliens with EADs, and individuals are not
considered a small entity under the Regulatory Flexibility Act. Some
entities (including employers) could be indirectly impacted by labor
turnover costs or the costs of implementing and utilizing E-Verify by
this proposed rule because they employ an affected alien. DHS has
prepared an initial regulatory flexibility analysis (IRFA) to accompany
this proposed rule.
1. A description of the reasons why the action by the agency is
being considered.
DHS has determined that the current employment authorization
regulations governing discretionary employment authorization do not
adequately reflect DHS's enforcement mission and priorities. As
discussed more fully in the preamble, DHS's current immigration
enforcement priorities include (1) the prompt removal of aliens who
have received a final order of removal from the United States; (2)
carrying out the directives contained in E.O. 14159 ``Protecting the
American People Against Invasion;'' and (3) implementing the
Administration's objective of strengthening protections for American
workers. DHS is proposing through this rulemaking to align its
discretionary authority to grant employment authorization with its
immigration enforcement mission and priorities. Enforcement is
essential to the integrity of the immigration system.
2. A succinct statement of the objectives of, and legal basis for,
the proposed rule.
DHS's authority to detain and release aliens ordered removed from
custody on an order of supervision and to grant employment
authorization is found in several statutory provisions. Section 102 of
the HSA (Pub. L. 107-296, 116 Stat. 2135), 6 U.S.C. 112, and section
103 of the INA, 8 U.S.C. 1103, charge the Secretary with the
administration and enforcement of the immigration and naturalization
laws of the United States.\334\ In addition to establishing the
Secretary's general authority to administer and enforce immigration
[[Page 34472]]
laws, section 103 of the INA, 8 U.S.C. 1103, enumerates various related
authorities, including the Secretary's authority to establish
regulations as are necessary for carrying out his or her authority.
Section 241 of the INA, 8 U.S.C. 1231, governs the detention, release,
removal, and employment eligibility of aliens after they have received
an administratively final order of removal. Section 274A of the INA, 8
U.S.C. 1324a, governs employment of aliens who are authorized to be
employed by statute or in the discretion of the Secretary and the
requirements U.S. employers must follow to verify the identity and
employment authorization of their employees. The authority to establish
and operate E-Verify is found in sections 401-405 of IIRIRA, Public Law
104-208, 110 Stat. 3009-546. The Secretary proposes the changes in this
rule under these authorities.
---------------------------------------------------------------------------
\334\ Public Law 104-208, div. C, at secs. 401-405.
---------------------------------------------------------------------------
3. A description of and, where feasible, an estimate of the number
of small entities to which the proposed rule will apply.
This rule directly regulates and impacts aliens with EADs, and
individuals are not considered a small entity under the Regulatory
Flexibility Act. Since some small entities may be indirectly impacted
by this proposed rule by employing an affected alien, DHS has developed
this IRFA to evaluate the potential impact on small entities. Small
entities could incur costs due to the proposed rule if they employ EAD
holders who are affected by the new requirements of the proposed rule.
However, DHS does not currently require information on the employer or
employment status of the EAD holder and thus is unable to determine how
many entities could be impacted by the proposed rule or whether the
entities impacted would be considered small entities. This is because
these EADs are open market EADs,\335\ and therefore DHS does not
currently collect information on the employer or the employment status
of the EAD holder. This proposed rule may cause some existing EAD
holders to be ineligible to renew their employment authorization. In
such cases, small entities may incur opportunity costs associated with
having to choose the next best alternative to immediately filling a job
an EAD holder would have filled in situations where eligibility for the
employment authorization category is not met. If entities cannot find
reasonable substitutes for the labor the aliens on discretionary EADs
described in this proposed rule would have provided, removing
employment authorization eligibility for these aliens would result
primarily in costs to those entities through lost productivity and lost
profits. DHS expects that this type of turnover would be incurred in
the first two years after the effective date of this rule.\336\ Small
entities, that do not currently participate in E-Verify would incur
costs to implement and use the program in order to retain aliens
temporarily released on OSUP in order for the alien to be eligible to
renew employment authorization under this rule. DHS estimates the total
first year cost for a new entity to enroll in the E-Verify program and
create a single E-Verify case would be approximately $126.69.\337\ In
subsequent years, DHS estimates newly enrolled entities would incur a
minimal annual cost of $59.87 to maintain their account and create one
new case for their category (c)(11), (c)(14), and (c)(18) alien
workers.\338\ DHS recognizes that the actual cost to newly enrolled
entities of using E-Verify would be higher since case submissions would
also include all newly hired employees, not just category (c)(11),
(c)(14), and (c)(18) alien workers. However, since DHS cannot predict
how many employees each entity would hire in the future, DHS cannot
estimate how many additional E-Verify cases an entity may expect to
create. Entities already enrolled in the E-Verify program who choose to
hire category (c)(11), (c)(14), and (c)(18) alien workers in subsequent
years would incur costs even in the absence of this proposed rule.
---------------------------------------------------------------------------
\335\ Open market EADs allow aliens to work in any occupation or
industry. The alien is not required to work for a specific employer
or in any specific industry or occupation, and the U.S. employer is
not required to test the labor market to ensure that there are no
American workers available and that the hiring of the category
(c)(11), (c)(14), and (c)(18) alien will not adversely affect the
wages and working conditions for similarly situated American
workers.
\336\ We do not attribute turnover costs from ineligibility in
other years because we operate under the assumption that if an
initial EAD is approved, then the renewal would also be approved
under the proposed criteria of this rule. DHS recognizes that in
some cases, a renewal filing could be denied even in the wake of an
approved initial EAD in future years, but the number of instances
this would occur is unknown. Estimation of these cases would be
speculative at this time.
\337\ Calculation: $119.85 opportunity cost for a new entity to
enroll in E-Verify + $6.84 cost to submit a query into E-Verify =
$126.69. Calculation: $53.03 1 hour of annual training + $6.84 cost
to submit a query into E-Verify = $59.87.
\338\ Calculation: $53.03 1 hour of annual training + $6.84 cost
to submit a query into E-Verify = $59.87.
---------------------------------------------------------------------------
Small entities that are not participating in E-Verify face the
binary choice of participating or not participating in the program. If
an entity who had hired a category (c)(11), (c)(14), and (c)(18) alien
worker does not participate, the entity faces the potential for labor
turnover costs. If the entity does participate, the entity incurs the
cost of enrolling and participating in the E-Verify program and
implementing the program requirements. On one hand, since the validity
period for the discretionary EADs can be variable and some can be
terminated at any time at DHS discretion, there might be some
disincentive not to participate in E-Verify. However, as discussed in
the ``Population'' section, DHS cannot make reliable estimates of the
number of entities that would enroll and participate in E-Verify, and
as such, cannot estimate total costs germane to this implementation.
If a small entity who employs category (c)(11), (c)(14), and
(c)(18) alien workers who would remain eligible under this rule is not
enrolled in E-Verify and opts not to enroll, the entity would incur
labor-related turnover costs. Entities would incur labor turnover costs
because these alien workers would remain eligible for initial
employment authorization under this rule but would not be eligible to
renew employment authorization since these aliens would be unable to
establish that they are employed by an entity enrolled in E-Verify. As
a result, alien workers would no longer be able to work and presumably
entities would need to find a replacement worker. For aliens who would
remain eligible for employment authorization under this rule--
specifically aliens who are under category (c)(18) and who meet the
exception under this proposed rule (i.e., removal is impracticable
because all countries from which DHS requested travel documents have
affirmatively declined to issue such documents)--the duration of time
to remove aliens on an order of supervision from the U.S. would likely
be longer than average as DHS has determined that removal for these
aliens is impracticable because all countries from which DHS has
requested travel documents have affirmatively declined to issue such
documents. Aliens under category (c)(11) and (c)(14) would also retain
some eligibility under this rule so long as the aliens are able to
provide the necessary documents to prove their economic necessity to
work, which will be determined by use of the Federal Poverty Guidelines
under title 42 of the U.S. Code. However, entities who do not use or
are enrolled in E-Verify would incur turnover costs in cases where
their category (c)(11), (c)(14), and (c)(18) alien workers would remain
eligible for employment authorization under this rule and instead would
have to find an eligible employer.
[[Page 34473]]
Using annual earnings based on the effective minimum wage (lower
bound), DHS estimates labor turnover costs would be approximately
$8,096 per worker and using the annual earnings based on the average
wage (upper bound), DHS estimates labor turnover costs would be
approximately $18,243 per worker.\339\ Turnover costs would be higher
if a U.S. employer that does not use or enroll in E-Verify employs more
than one category (c)(11), (c)(14), or (c)(18) alien worker who would
remain eligible under this rule. DHS recognizes that turnover costs
would occur in the year an EAD expires and, depending on the effective
date of this rule should it become finalized, employers who incur
turnover costs may incur them in up to two consecutive fiscal years.
---------------------------------------------------------------------------
\339\ Calculation: $36,144 x 22.4% = $8,096; $81,440 x 22.4% =
$18,243. For more information on this calculation, please see the
``Turnover Costs to Employers Who Currently Hire Discretionary EAD
Holders'' section.
---------------------------------------------------------------------------
DHS is unable to predict how many entities would participate in E-
Verify in order to retain their category (c)(11), (c)(14), or (c)(18)
alien workers or the total number of employment authorizations these
entities would confirm through E-Verify should they choose to
participate. DHS assumes that entities would make a cost-benefit
decision between incurring labor turnover costs and incurring the
current and future costs to enroll and participate in E-Verify. DHS
recognizes that an entity that enrolls and participates in E-Verify
would confirm employment authorization for all new hires, not only
their discretionary EAD alien workers.
DHS has no way to predict how many small entities would adopt the
E-Verify system and how many workers they would vet. Since this rule
proposes a reduction in eligibility for employment authorization for
aliens with final orders of removal, aliens granted deferred action,
and aliens granted parole, the impact on the renewal population would
depend on which aliens remain eligible and if the alien's employer
already participates in E-Verify or would be willing to enroll and
participate in E-Verify if the employer is not enrolled. DHS cannot
rule out that some employers would incur labor turnover costs as a
result of choosing not to enroll and participate in E-Verify. Because
of the uncertainty regarding eligibility, DHS is unable to estimate a
range for the renewal population that would be impacted by this
provision and attempting to do so would be completely speculative.
However, DHS acknowledges there could be aliens applying for renewal
who would be impacted by this provision, which could, in turn, affect
employers, some of which could be small entities. DHS seeks comments
from the public on the impacts to small entities from enrolling and
participating in the E-Verify program. DHS also seeks public comment on
the number of small businesses that may be affected as well as
compliance costs to those small businesses as a result of this proposed
rule.
4. A description of the projected reporting, recordkeeping, and
other compliance requirements of the proposed rule, including an
estimate of the classes of small entities that will be subject to the
requirement and the type of professional skills necessary for
preparation of the report or record.
This rule would not directly impose any reporting, recordkeeping,
or other compliance requirements on small entities.
5. Identification, to the extent practicable, of all relevant
Federal rules that may duplicate, overlap or conflict with the proposed
rule.
DHS has recently published a proposed rule, Employment
Authorization Reform for Asylum Applicants (``Asylum EAD Reform Rule'')
addressing employment authorization for aliens with pending
applications for asylum under 8 CFR 274a.12(c)(8) and 8 CFR 208.7. DHS
is also concurrently proposing to amend its regulations concerning the
use and submission of biometrics in the administration and enforcement
of immigration and naturalization laws and the adjudication of any
immigration application, petition, or benefit or any other related
request or collection of information (``Biometrics Rule'').
6. Description of any significant alternatives to the proposed rule
that accomplish the stated objectives of applicable statutes and that
minimize any significant economic impact of the proposed rule on small
entities.
This rule directly regulates and impacts aliens with final orders
of removal, aliens granted deferred action, and aliens granted parole,
and individuals are not considered a small entity under the Regulatory
Flexibility Act. Accordingly, DHS is not aware of any alternatives to
the proposed rule that accomplish the stated objectives and that would
minimize the economic impact of the proposed rule on small entities as
this rule already imposes no direct costs on small entities. DHS
requests comment and seeks alternatives from the public that will
accomplish the same objectives.
C. 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.\340\ 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, which 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. See 2
U.S.C. 1532(a). The inflation adjusted value of $100 million in 1995 is
approximately $206 million in 2024 based on the Consumer Price Index
for All Urban Consumers (CPI-U).\341\
---------------------------------------------------------------------------
\340\ The term ``Federal mandate'' means a Federal
intergovernmental mandate or a Federal private sector mandate. See 2
U.S.C. 1502(1), 658(5), (6).
\341\ See BLS, ``Historical Consumer Price Index for All Urban
Consumers (CPI-U): U.S. city average, all items, by month,'' https://www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202412.pdf. Calculation of inflation: (1) Calculate the average
monthly CPI-U for the reference year (1995) and the current year
(2024); (2) Subtract reference year CPI-U from current year CPI-U;
(3) Divide the difference of the reference year CPI-U and current
year CPI-U by the reference year CPI-U; (4) Multiply by 100 =
[(Average monthly CPI-U for 2024--Average monthly CPI-U for 1995) /
(Average monthly CPI-U for 1995)] x 100 = [(313.689-152.383) /
152.383] = (161.306 / 152.383) = 1.059 x 100 = 105.9 percent = 106
percent (rounded). Calculation of inflation-adjusted value: $100
million in 1995 dollars x 2.06 = $206 million in 2024 dollars.
---------------------------------------------------------------------------
This proposed rule does not contain such a mandate, because it
would not impose any enforceable duty upon any other level of
government or private sector entity. Rather, there may be some private-
public partnership investment projects and beneficial downstream
effects to State or local governments because the rule would codify the
set aside for infrastructure projects. Any downstream effects on such
entities would arise solely due to their voluntary choices, and the
voluntary choices of others, and would not be a consequence of an
enforceable duty imposed by this rule. Similarly, any costs or transfer
effects on State and local governments would not result from a Federal
mandate as that term is defined under UMRA. The requirements of title
II of UMRA; therefore, do not apply, and DHS has not prepared a
statement under UMRA. DHS has, however, analyzed many of the potential
effects of this proposed action in the RIA above.
[[Page 34474]]
D. Small Business Regulatory Enforcement Fairness Act of 1996
(Congressional Review Act)
This proposed rule is a major rule as defined by 5 U.S.C. 804, also
known as the Congressional Review Act (CRA) as enacted in section 251
of the Small Business Regulatory Enforcement Fairness Act of 1996,
Public Law 104-121, 110 Stat. 847, 868 et seq. Accordingly, this rule,
if enacted as a final rule, would be effective absent any exceptions at
least 60 days after the date on which Congress receives a report
submitted by DHS under the CRA, or 60 days after the final rule's
publication, whichever is later. 5 U.S.C. 801.
E. Executive Order 13132 (Federalism)
This proposed rule will 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, Federalism, it is determined that this proposed rule
does not have sufficient federalism implications to warrant the
preparation of a federalism summary impact statement.
F. Executive Order 12988 (Civil Justice Reform)
This proposed rule was drafted and reviewed in accordance with E.O.
12988, Civil Justice Reform. This proposed 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 proposed rule meets the applicable standards
provided in sections 3(a) and 3(b)(2) of E.O. 12988.
G. Family Assessment
DHS has reviewed this rule in line with the requirements of section
654 of the Treasury General Appropriations Act, 1999, Public Law 105-
277, 112 Stat. 2681 (1998). DHS has systematically reviewed the
criteria specified in section 654(c)(1) of the statute 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.
DHS has determined that the proposed rule may adversely cause
personal and family-related hardships, including causing disruptions to
the alien and his or her U.S. citizen or LPR spouse and/or children
dependent on the income currently earned by the affected alien and may
decrease disposable income and increase the poverty of certain family
members.
DHS has also determined the proposed rule may decrease disposable
income and increase the poverty of certain families and children,
including U.S. citizen children. However, DHS notes that employment
authorization under these categories are a discretionary benefit and
temporary in nature.\342\ Families without durable lawful status should
ultimately not solely rely upon discretionary categories of employment
authorization and may experience hardship should they fail to take into
account the temporary and discretionary nature of such benefits. The
same is true for aliens with a final order of removal who will
eventually be removed from the country, and their families should
ultimately expect to experience such hardships.
---------------------------------------------------------------------------
\342\ DHS further notes that the underlying basis for employment
authorization of the relevant categories of this rule--namely a
grant of parole, deferred action, or order of supervision--are also
wholly discretionary and temporary in nature.
---------------------------------------------------------------------------
However, for the reasons stated elsewhere in this preamble, DHS has
determined that the benefits of the action justify the financial impact
on such families. As described throughout this proposed rule, DHS has
compelling legal and policy reasons for the proposed regulatory action.
Any hardship that may occur because of an alien's inability to work is
outweighed by DHS's goals of restoring the integrity of the immigration
system through enforcement and judiciously using its discretion in
those limited circumstances that serve a legitimate government
interest. As described in the Purpose, Background, and Discussion
sections of this rule, DHS has compelling legal and policy reasons for
the proposed regulatory action, including the enforcement of the
general prohibition against providing aliens ordered removed with
employment authorization and disincentivizing those aliens with final
orders of removal from remaining in the United States without a durable
lawful status. This proposed rule's impact is justified, and no further
actions are required.
Finally, DHS has also determined that the proposed rule neither
strengthens nor erodes the authority and rights of parents in the
education, nurture, and supervision of their children. The proposed
rule also does not affect the ability of families to perform their
functions or substitute governmental activity or function for the
functions of families. This is not an action that can be carried out by
State or local government, nor does the action establish an implicit or
explicit policy concerning the relationship between the behavior and
personal responsibility of youths and the norms of society.
H. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
This rule does not have tribal implications under E.O. 13175,
Consultation and Coordination with Indian Tribal Governments, because
it does not have a substantial direct effect on one or more Indian
tribes, on the relationship between the Federal Government and Indian
tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian tribes.
I. National Environmental Policy Act
DHS and its components analyze proposed regulatory actions to
determine whether the National Environmental Policy Act (NEPA), 42
U.S.C. 4321 et seq., applies and, if so, what degree of analysis is
required. DHS Directive 023-01 Rev. 01 ``Implementing the National
Environmental Policy Act'' (Dir. 023-01 Rev. 01) and Instruction Manual
023-01-001-01 Rev. 01 (Instruction Manual) \343\ establish the policies
and procedures that DHS and its components use to comply with NEPA.
---------------------------------------------------------------------------
\343\ The Instruction Manual contains DHS's procedures for
implementing NEPA and was issued November 6, 2014, https://www.dhs.gov/ocrso/eed/epb/nepa. (last updated July 29, 2025)
---------------------------------------------------------------------------
NEPA allows Federal agencies to establish, in their NEPA
implementing procedures, categories of actions (``categorical
exclusions'') that experience has shown do not, individually or
cumulatively, have a significant effect on the human environment and,
therefore, do not require an environmental assessment or environmental
impact statement.\344\ The
[[Page 34475]]
Instruction Manual, Appendix A lists the DHS Categorical
Exclusions.\345\
---------------------------------------------------------------------------
\344\ See 42 U.S.C. 4336(a)(2), 4336e(1).
\345\ See Instruction Manual, Appendix A, Table 1.
---------------------------------------------------------------------------
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.\346\
---------------------------------------------------------------------------
\346\ Instruction Manual at V.B(2)(a) through (c).
---------------------------------------------------------------------------
This proposed rule is limited to amending the regulatory criteria
for applying for employment authorization and clarifies discretionary
employment authorization eligibility for aliens paroled into the United
States temporarily for urgent humanitarian reasons or significant
public benefit, for aliens granted deferred action, and for aliens who
have a final order of removal and who are temporarily released from
custody on an order of supervision. This proposed rule is strictly
administrative and procedural and amends DHS's existing regulations
governing employment authorization. DHS has reviewed this proposed rule
and finds that no significant impact on the environment, or any change
in environmental effect will result from the amendments being
promulgated in this proposed rule.
Accordingly, DHS finds that the promulgation of this proposed
rule's amendments to current regulations clearly fits within
categorical exclusion A3 established in DHS's NEPA implementing
procedures as an administrative change with no change in environmental
effect, is not part of a larger Federal action, and does not present
extraordinary circumstances that create the potential for a significant
environmental effect. Therefore, the proposed amendments are
categorically excluded from further NEPA review.
J. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, Public Law 104-13, 109
Stat. 163 (1995), all Departments are required to submit to OMB, for
review and approval, any reporting or recordkeeping requirements
inherent in a rule. USCIS is revising two information collections in
association with this rulemaking action:
Form I-765
USCIS invites the general public and other Federal agencies to
comment on the impact to the proposed collection of information. In
accordance with the PRA, the information collection notice is published
in the Federal Register to obtain comments regarding the proposed edits
to the information collection instrument.
Comments are encouraged and will be accepted for 60 days from the
publication date of the proposed rule. All submissions received must
include the OMB Control Number 1615-0040 in the body of the letter and
the agency name. To avoid duplicate submissions, please use only one of
the methods under the ADDRESSES and ``Public Participation'' sections
of this rule to submit comments. Comments on this information
collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for
the proper performance of the functions of the agency, including
whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of
the collection of information, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of information on those
who are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of responses.
Overview of Information Collection
(1) Type of Information Collection: Revision of a Currently
Approved Collection.
(2) Title of the Form/Collection: Application for Employment
Authorization.
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: I-765; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals or households. Form I-
765 collects information needed to determine if an alien is eligible
for an initial EAD, a replacement EAD, or a subsequent EAD upon the
expiration of a previous EAD under the same eligibility category.
Aliens in many immigration statuses are required to possess an EAD as
evidence of work authorization. To be authorized for employment, an
alien must be lawfully admitted for permanent residence or authorized
to be so employed by the INA or under regulations issued by DHS.
Pursuant to statutory or regulatory authorization, certain classes of
aliens are authorized to be employed in the United States without
restrictions as to location or type of employment as a condition of
their admission or subsequent change to one of the indicated classes.
USCIS may determine the validity period assigned to any document issued
evidencing an alien's authorization to work in the United States. These
classes of aliens authorized to accept employment are listed in 8 CFR
274a.12. USCIS also collects biometric information from certain aliens
applying for EADs to verify the alien's identity, check or update their
background information, and produce the EAD card. An alien applying for
employment authorization can apply for a Social Security number and
Social Security card using Form I-765.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: The estimated
total number of respondents for the information collection I-765
(paper) is 1,682,157 and the estimated hour burden per response is 4.88
hours; the estimated total number of respondents for the information
collection I-765 (electronic) is 455,653 and the estimated hour burden
per response is 4 hours; the estimated total number of respondents for
the I-765 PDFi submission process is 148,190 and the estimated burden
per response is 4.312 hours; the estimated total number of respondents
for the information collection Form I-765WS is 302,000 and the
estimated hour burden per response is 1 hour; the estimated total
number of respondents for the information collection Biometric
Processing is 302,355 and the estimated hour burden per response is
1.17 hours; the estimated total number of respondents for the
information collection Passport-Style Photographs is 2,286,000 and the
estimated hour burden per response is 0.5 hours.
(6) An estimate of the total public burden (in hours) associated
with the collection: The total estimated annual hour burden associated
with this collection is 12,441,047 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $400,895,820.
Form I-131
USCIS invites the general public and other federal agencies to
comment on the impact to the proposed collection of information. In
accordance with the PRA, the information collection notice is published
in the Federal Register to
[[Page 34476]]
obtain comments regarding the proposed edits to the information
collection instrument.
Comments are encouraged and will be accepted for 60 days from the
publication date of the proposed rule. All submissions received must
include the OMB Control Number 1615-0013 in the body of the letter and
the agency name. To avoid duplicate submissions, please use only one of
the methods under the ADDRESSES and ``Public Participation'' sections
of this rule to submit comments. Comments on this information
collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for
the proper performance of the functions of the agency, including
whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of
the collection of information, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of information on those
who are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of responses.
Overview of this information collection:
(1) Type of Information Collection: Revision of a Currently
Approved Collection.
(2) Title of the Form/Collection: Application for Travel Document.
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: Form I-131; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals or households. Certain
aliens, principally lawful permanent residents, conditional permanent
residents, refugees, asylees, aliens applying for adjustment of status,
aliens with pending Temporary Protected Status (TPS) applications and
granted TPS, eligible recipients of DACA, aliens inside the United
States seeking an Advance Parole Document, aliens outside the United
States seeking an Advance Parole Document, and Commonwealth of the
Northern Mariana Islands long-term residents seeking Advance Permission
to Travel to allow them to travel to the United States and lawfully
enter or reenter the United States. U.S. citizens and lawful permanent
residents will no longer utilize Form I-131 to request parole for their
eligible family members under the Cuban Family Reunification Parole or
Haitian Family Reunification Parole processes.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: The estimated
total number of respondents for the information collection Form I-131
(paper) is 976,639 and the estimated hour burden per response is 3.167
hours; the estimated total number of respondents for the information
collection Form I-131 (online) is 30,205 and the estimated hour burden
per response is 2 hours; the estimated total number of respondents for
biometrics processing is 49,615 and the estimated hour burden per
response is 1.17 hours; the estimated total number of respondents for
passport-style photos is 16,600 and the estimated hour burden per
response is 0.5 hours.
(6) An estimate of the total public burden (in hours) associated
with the collection: The total estimated annual hour burden associated
with this collection is 3,219,776 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $296,178,136.
K. Executive Order 12630 (Governmental Actions and Interference With
Constitutionally Protected Property Rights)
This rule would not cause the taking of private property or
otherwise have taking implications under Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights.
List of Subjects
8 CFR Part 106
Citizenship and naturalization, Fees, Immigration.
8 CFR Part 241
Administrative practice and procedure, Aliens, Immigration.
8 CFR Part 274a
Administrative practice and procedure, Aliens, Cultural exchange
program, Employment, Penalties, Reporting and recordkeeping
requirements, Students.
Accordingly, DHS proposes to amend parts 106, 241, and 274a of
chapter I, subchapter B, of title 8 of the Code of Federal Regulations
as follows:
PART 106--USCIS FEE SCHEDULE
0
1. The authority citation for part 106 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1254a, 1254b, 1304, 1356; Pub.
L. 107-609; 48 U.S.C. 1806; Pub. L. 107-296, 116 Stat. 2135 (6
U.S.C. 101 note); Pub. L. 115-218, 132 Stat. 1547; Pub. L. 116-159,
134 Stat. 709.
0
2. Section 106.2 is amended by revising paragraphs (a)(44)(ii)(F) and
(a)(44)(iv)(D) to read as follows:
Sec. 106.2 Fees.
(a) * * *
(44) * * *
(ii) * * *
(F) Persons granted Withholding of Deportation or Removal or
Deferral of Removal;
* * * * *
(iv) * * *
(D) Persons granted Withholding of Deportation or Removal or
Deferral of Removal;
* * * * *
PART 241--APPREHENSION AND DETENTION OF ALIENS ORDERED REMOVED
0
3. The authority citation for part 241 continues to read as follows:
Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1103, 1182, 1223,
1224, 1225, 1226, 1227, 1228, 1231, 1251, 1253, 1255, 1330, 1362; 18
U.S.C. 4002, 4013(c)(4); Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C.
101, et seq.); 8 CFR part 2.
0
4. Section 241.4 is amended by revising paragraph (j)(3) to read as
follows:
Sec. 241.4 Continued detention of inadmissible, criminal, and other
aliens beyond the removal period.
* * * * *
(j) * * *
(3) Employment authorization. An alien who is subject to a final
order of deportation or removal and whom ICE has temporarily released
from custody on an order of supervision pursuant to section 241(a)(3)
of the Act after making the required assessment under section 241(a)(7)
of the Act may apply to USCIS for employment authorization pursuant to
the procedures prescribed under Sec. Sec. 274a.12(c)(18) and 274a.13
of this chapter. Any grant of employment authorization by USCIS is
discretionary. USCIS will only grant employment authorization if USCIS
determines that the alien meets the criteria for employment
authorization under Sec. 274a.12(c)(18) of this chapter and warrants a
favorable exercise of discretion. The alien must request employment
authorization on the form
[[Page 34477]]
and in the manner prescribed by USCIS and according to the form
instructions.
* * * * *
0
5. Section 241.5 is amended by revising the paragraph (a) introductory
text and paragraph (c) to read as follows:
Sec. 241.5 Conditions of release after removal period.
(a) Order of supervision. Any alien U.S. Immigration and Customs
Enforcement (ICE) determines should be released from custody or
detention pursuant to Sec. Sec. 241.4 and 241.13(h) of this part,
shall only be released on an order of supervision and shall be issued a
completed Form I-220B, Order of Supervision, or successor form, which
specifies the conditions for release and consequences for failure to
comply with the conditions of release, including DHS's authority to
take the alien back into custody and the potential for criminal charges
and fines under Sec. 243 of the Act if the alien fails to comply with
the terms of supervised release. The Secretary, Director of ICE, or
designated delegate shall have the authority to issue an order of
supervision under this section. The order of supervision shall specify
conditions of supervision including, but not limited to, the following:
* * * * *
(c) Employment authorization. An alien who is subject to a final
order of removal and whom U.S. Immigration and Customs Enforcement has
released on an order of supervision pursuant to section 241(a)(3) of
the Act and under this section may apply to U.S. Citizenship and
Immigration Services (USCIS) for employment authorization on the form
designated by USCIS, with the appropriate fee and in accordance with
the form instructions, pursuant to the procedures prescribed under
Sec. Sec. 274a.12 and 274a.13 of this chapter.
0
6. Section 241.13 is amended by revising paragraph (h)(3) to read as
follows:
Sec. 241.13 Determination of whether there is a significant
likelihood of removing a detained alien in the reasonably foreseeable
future.
* * * * *
(h) * * *
(3) Employment authorization. USCIS may, in the exercise of its
discretion, grant employment authorization under the same conditions
set forth in Sec. Sec. 241.5, 274a.12(c)(18), and 274a.13 of this
chapter for aliens released under an order of supervision.
* * * * *
PART 274a--CONTROL OF EMPLOYMENT OF ALIENS
0
7. The authority citation for part 274a continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1105a, 1324; 48 U.S.C. 1806;
Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 114-74, 129
Stat 599; Title VII of Pub. L. 110-229, 122 Stat. 754; Pub. L. 115-
218, 132 Stat. 1547; 8 CFR part 2.
0
8. Section 274a.12 is amended by revising the introductory text of
paragraph (c), paragraph (c)(11), paragraph (c)(14), and paragraph
(c)(18) to read as follows:
Sec. 274a.12 Classes of aliens authorized to accept employment.
* * * * *
(c) Aliens who must apply to receive employment authorization. An
alien within a class of aliens described in this section must apply in
order to receive employment authorization and an employment
authorization document. Except as otherwise provided by law and except
for aliens described in paragraph (c)(8), whether to authorize
employment of an alien within a class described in this section is in
the sole and unreviewable discretion of USCIS.
* * * * *
(11) Except as provided in paragraphs (b)(37) and (c)(34) of this
section and Sec. 212.19(h)(4), Sec. 235.3(b)(2)(iii), and Sec.
235.3(b)(4)(ii) of this chapter, an alien paroled into the United
States temporarily for urgent humanitarian reasons or significant
public benefit pursuant to section 212(d)(5) of the Act.
(i) An alien may be granted employment authorization under this
paragraph and 8 CFR 274.13(a)(3) only if the alien establishes:
(A) An economic necessity for employment; and
(B) The alien warrants a favorable exercise of discretion.
(ii) To renew employment authorization under this paragraph, the
alien must also establish that he or she is employed by or seeking
employment with a U.S. employer who is a participant in good standing
in E-Verify by providing the E-Verify Company Identification Number (or
Client Company Identification Number if the U.S. employer uses an
agent) of the employer.
* * * * *
(14) Except as provided for in paragraph (c)(33) or (c)(40) of this
section, an alien who has been granted deferred action, an act of
administrative convenience to the government that gives some cases
lower priority.
(i) An alien may be granted employment authorization under this
paragraph only if the alien establishes:
(A) An economic necessity for employment; and
(B) The alien warrants a favorable exercise of discretion.
(ii) To renew employment authorization under this paragraph, the
alien must also establish that he or she is employed by or seeking
employment with a U.S. employer who is a participant in good standing
in E-Verify by providing the E-Verify Company Identification Number (or
Client Company Identification Number if the U.S. employer uses an
agent) of the employer.
* * * * *
(18) An alien against whom a final order of removal exists,
including aliens granted deferral of removal pursuant to Sec. 208.17
or Sec. 1208.17 of this title, and who is temporarily released from
custody on an order of supervision under the authority contained in
section 241(a)(3) of the Act and Sec. 241.5 of this chapter.
(i) An alien may be granted employment authorization under this
paragraph only if the alien establishes:
(A) Compliance with the conditions of release described in his or
her order of supervision;
(B) The alien is one whose removal DHS has determined is
impracticable because all countries from which DHS requested travel
documents have failed to issue such documents;
(C) An economic necessity to be employed; and
(D) The alien warrants a favorable exercise of discretion.
(ii) In addition to the requirements described in paragraph (e) of
this section, to establish economic necessity for employment, an alien
may demonstrate that he or she is a primary provider of economic
support for a dependent U.S. citizen, lawful permanent resident, or
lawfully present child(ren), spouse, or parent(s).
(iii) To renew employment authorization under this paragraph, the
alien must also establish that he or she is employed by or seeking
employment with a U.S. employer who is a participant in good standing
in E-Verify by providing the E-Verify Company Identification Number (or
Client Company Identification Number if the U.S. employer uses an
agent) of the employer.
* * * * *
(e) Basic criteria to establish economic necessity. The poverty
guidelines updated periodically in the Federal Register by the U.S.
Department
[[Page 34478]]
of Health and Human Services under the authority of 42 U.S.C. 9902(2)
will be used as the basic criteria to establish eligibility for
employment authorization when the alien's economic necessity is
identified as a factor. The alien shall submit an application for
employment authorization listing his or her assets, income, and
expenses as evidence of his or her economic need to work. Permission to
work granted on the basis of the alien's application for employment
authorization may be revoked in accordance with the procedures set
forth in 274a.14(b) of this chapter upon a showing that the information
contained in the statement was not true and correct.
0
9. Section 274a.13 is amended by revising paragraph (a)(1), adding a
paragraph heading to paragraph (a)(2), adding paragraph (a)(3), and
revising paragraph (b) to read as follows:
Sec. 274a.13 Application for employment authorization.
(a) * * *
(1) Aliens who must apply for employment authorization under Sec.
274a.12(c) of this chapter.
(i) An alien authorized employment under Sec. 274a.12(c) shall be
subject to all conditions and restrictions specified by applicable law,
regulations, form instructions, or on the employment authorization
document.
(ii) USCIS, in its discretion, may establish a specific validity
period for an employment authorization document issued to an alien who
falls within one of the classes of aliens described in Sec.
274a.12(c), which may include authorization to work while any
administrative appeal or judicial review of an application, petition,
or request is pending.
(iii) Aliens applying for employment authorization under Sec.
274a.12(c) must submit biometrics in accordance with Sec. 103.16 of
this chapter, with any required fee. USCIS shall notify aliens of the
proper date, time, and location to appear for the submission of
biometrics after the application for employment authorization has been
filed.
(iv) The approval of applications for initial employment
authorization or renewal of employment authorization filed under Sec.
274a.12(c), except as otherwise provided by law and except for aliens
described in Sec. 274a.12(c)(8), is within the sole and unreviewable
discretion of USCIS. In general, unless DHS has determined that there
are significant countervailing public interests, USCIS will not grant
employment authorization under any of the following circumstances,:
(A) The alien has been arrested for, charged with (without
disposition), indicted for, or has been convicted of, any criminal act;
(B) The alien admits to committing a violent or dangerous crime,
even if the alien has never been formally arrested, charged, indicted,
or convicted; or
(C) There is evidence of the alien's membership in a gang or
terrorist organization.
(2) Aliens applying for asylum. * * *
(3) Aliens under orders of supervision. In addition to the
requirements under paragraph (a), an alien who is applying for initial
employment authorization under Sec. 274a.12(c)(18) must also submit
the following supporting documentation:
(i) An administrative removal order issued by DHS or a decision by
an Immigration Judge or the Board of Immigration Appeals (BIA)
demonstrating that the alien is subject to a final order of removal or
deportation;
(ii) A form designated by USCIS, such as a completed Form I-765
including Form I-765WS, to show economic necessity pursuant to Sec.
274a.12(e), as well as documentary evidence of economic necessity, such
as statements of income, expenses, and assets, and/or demonstrate that
he or she is a primary provider of economic support for a dependent
U.S. citizen, lawful permanent resident, or lawfully present
child(ren), spouse, or parent(s);
(iii) The complete Form I-220B, Order of Supervision, or successor
form, including the Personal Report Record that reflects that the alien
is complying with the conditions for supervised release. The Form I-
220B must also reflect that DHS has determined that the alien's removal
is impracticable at this time because every country the U.S. government
has asked to accept the alien, as described in section 241(b) of the
Act, failed to provide the appropriate travel documents; and
(iv) If a condition of the order of supervision is to support a law
enforcement investigation or prosecution, the alien must provide
evidence that he or she is materially cooperating with Federal, State,
or local law enforcement on a criminal investigation or prosecution.
This includes a completed designated form executed by a qualifying law
enforcement entity certifying material cooperation.
(b) Approval of application. If USCIS approves a request for
employment authorization or an Employment Authorization Document (Form
I-766), USCIS will issue an employment authorization document valid for
a specific period, and the alien will be subject to any terms and
conditions required by applicable law, regulations, form instructions,
or specified on the employment authorization document. USCIS has
discretion to determine, except as otherwise provided by law, the
period for employment authorization, except that employment
authorization under Sec. 274a.12(c)(14) and (c)(18) shall not exceed 1
year.
* * * * *
0
10. Section 274a.14 is amended by revising paragraphs (a)(1)(i)-(iii)
and adding paragraphs (a)(1)(iv)-(vi) to read as follows:
Sec. 274a.14 Termination of employment authorization.
(a) * * *
(1) * * *
(i) The expiration date specified by USCIS on the employment
authorization document is reached;
(ii) Removal proceedings are instituted (however, this shall not
preclude the subsequent authorization of employment pursuant to Sec.
274a.12(c) where appropriate);
(iii) The alien is granted voluntary departure;
(iv) The alien receives an administratively final order of removal
(however, this shall not preclude the subsequent authorization of
employment pursuant to Sec. 274a.12(c) where appropriate);
(v) The underlying basis for employment authorization is terminated
or denied; or
(vi) Under Sec. 274a.12(c)(18):
(A) If a condition of the order of supervision is the alien's
material support of a law enforcement investigation or prosecution, the
termination of any agreement with the relevant law enforcement entity
or the conclusion of the investigation or prosecution; or
(B) DHS or the alien obtains the travel or other documents
necessary to effectuate the alien's removal from the United States.
* * * * *
Markwayne Mullin,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2026-11285 Filed 6-4-26; 8:45 am]
BILLING CODE 9111-97-P