`[Federal Register Volume 89, Number 240 (Friday, December 13, 2024)]
[Rules and Regulations]
[Pages 101208-101267]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-28584]



[[Page 101207]]

Vol. 89

Friday,

No. 240

December 13, 2024

Part III





Department of Homeland Security





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8 CFR Part 274a





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

  Federal Register / Vol. 89, No. 240 / Friday, December 13, 2024 / 
Rules and Regulations  

[[Page 101208]]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 274a

[CIS No. 2785-24; DHS Docket No. USCIS-2024-0002]
RIN 1615-AC78


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

AGENCY: U.S. Citizenship and Immigration Services (``USCIS''), 
Department of Homeland Security (``DHS'').

ACTION: Final rule.

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

DATES: This final rule is effective January 13, 2025.

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

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Executive Summary
    A. Purpose of the Regulatory Action
    B. Summary of Legal Authority
    C. Summary of Regulatory Changes
    D. Severability
    E. Summary of Costs and Benefits
II. Background
    A. Legal Authority
    B. Legal Framework for Employment Authorization and Verification
    1. Types of Employment Authorization: 8 CFR 274a.12(a), (b), and 
(c)
    2. The Application Process for Obtaining Employment 
Authorization and EADs
    3. Automatic Extensions of EADs for Renewal Applicants and 
Related Employment Eligibility Verification Requirements for 
Employers
    i. Renewing Employment Authorization and/or EADs
    ii. Minimizing the Risk of Gaps in Employment Authorization and/
or EAD Validity Through Automatic Extensions
    C. 2022 Temporary Final Rule
    1. Overview
    2. Impact of the 2022 Temporary Final Rule
    D. 2024 Temporary Final Rule
    1. Overview
    2. Impact of the 2024 Temporary Final Rule
III. Purpose and Discussion of the Final Rule
    A. Circumstances Resulting in the 2022 Temporary Final Rule
    1. USCIS Enjoined From Increasing Its Filing Fees
    2. Public Health Emergency Caused by the COVID-19 Pandemic
    3. Unprecedented Increase in EAD Application Filings
    4. Combined Impact on Renewal EAD Application Processing Times
    B. Circumstances Resulting in the 2024 Temporary Final Rule
    1. Overview
    2. Surge in Initial EAD Application Filings by Pending Asylum 
Applicants
    3. Significant Increase in Referrals to USCIS for Credible Fear 
Assessments
    4. Impact of Asylum Filing Surges and Backlogs on C08 Renewals
    5. Additional Designations for Temporary Protected Status
    6. Combined Impact on Renewal EAD Application Processing Times
    C. Automatic Extension Period of up to 180 Days in Current 8 CFR 
274a.13(d)(1) Is Insufficient
IV. Discussion of Public Comments
    A. Summary of Comments on the 2024 TFR
    B. General Support for the 2024 TFR
    C. General Opposition to the 2024 TFR
    D. Legal Authority
    E. Purpose of the 2024 TFR
    F. Positive Impacts of the 2024 TFR
    G. Impacts on U.S. Employers and the Economy
    1. Provide Stability and Decrease Burdens for U.S. Employers
    2. Contributions to Local, State, and U.S. Economy
    3. Alleviate Shortages in the U.S. Labor Market
    H. Impacts on the U.S. Government
    I. Allow a Second 540-Day Automatic Extension Period for 
Noncitizens Who Received the 2022 TFR Automatic Extension
    J. Make Permanent and Extend the Temporary Automatic Extension 
Period Beyond 540 Days
    1. Permanent Increase to the Automatic Extension Period
    i. Increase Necessary To Address Processing Backlogs
    ii. Benefit to USCIS
    iii. Benefit to Workers
    iv. Benefit to Employers
    2. Increase the Automatic Extension Period to 730 Days
    K. Expand EAD Categories Eligible for Automatic Extension
    L. EAD Validity Period
    M. Automatic Renewals
    N. Application, Adjudication, and Notification Processes
    1. General Comments on Adjudication and Application Times and 
Prioritization of Reviews
    i. EAD Processing Resources and Priorities
    ii. Decentralizing of EAD Processing and Other Processing 
Recommendations
    iii. General Processing
    iv. Notification to Applicants
    v. Suggestions To Improve USCIS' Systems or Applicant-USCIS 
Communication
    2. Transparency, Clarity, and Outreach to External Stakeholders
    3. Alternative Actions
    4. Regulatory Impact Analysis
V. Regulatory Changes: 8 CFR 274a.2(b)(1)(vii), 8 CFR 274a.13(d)(1), 
(d)(3) and 8 CFR 274a.13(d)(6); Authority Citation
    A. Modifying 8 CFR 274a.2(b)(1)(vii)
    B. Revising 8 CFR 274a.13(d)(1) and (d)(3), and Removing (d)(5) 
and (d)(6)
    C. Revising Authority Citations for 8 CFR Part 274a
VI. Statutory and Regulatory Requirements
    A. Executive Order 12866 (Regulatory Planning and Review) and 
Executive Order 13563 (Improving Regulation and Regulatory Review)
    1. No Action Baseline--Effects of This Final Rule
    2. Without TFR Baseline--Effects of the 2022 and 2024 TFRs
    i. Introduction
    ii. Background and Population
    iii. Impact Analysis
    a. Module A. Earnings of Renewal EAD Applicants
    b. Module B. Impacts That Could Accrue to Labor Earnings
    1. Earnings Impact to EAD holders
    2. Labor Turnover Cost Impacts
    c. Module C. Monetized Impacts for the 2022 and 2024 TFRs, FY 
2023 Through FY 2027
    d. Module D. Other Impacts
    3. Alternatives Considered
    B. Regulatory Flexibility Act
    C. Unfunded Mandates Reform Act of 1995
    D. Small Business Regulatory Enforcement Fairness Act of 1996 
(Congressional Review Act)
    E. Executive Order 13132 (Federalism)
    F. Executive Order 12988 (Civil Justice Reform)
    G. Executive Order 13175 (Consultation and Coordination With 
Indian Tribal Governments)
    H. National Environmental Policy Act
    I. Family Assessment
    J. Paperwork Reduction Act
VII. List of Subject and Regulatory Amendments

I. Executive Summary

A. Purpose of the Regulatory Action

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

[[Page 101209]]

increase the automatic extension period for employment authorization 
and the validity of certain EADs from up to 180 days to up to 540 days. 
This automatic extension period is available to certain applicants who 
timely filed a Form I-765, Application for Employment Authorization, to 
renew their EADs.
    Since the promulgation of 8 CFR 274a.13(d) with its 180-day 
automatic extension period in 2016,\1\ DHS has issued two temporary 
final rules (TFRs) temporarily increasing the automatic extension 
period to up to 540 days in order to prevent a substantial number of 
renewal EAD applicants from experiencing a lapse in their employment 
authorization and/or documentation.\2\ With the 2024 TFR that is 
currently in effect, DHS focused on near-term needs of renewal 
applicants, their families, and employers by substantially reducing the 
number of applicants who would experience harmful effects created by 
gaps in their employment authorization and/or documentation.\3\ The 
2024 TFR also provided DHS and USCIS with additional time to consider 
long-term solutions by soliciting public comments, evaluating the 
effects of policy and operational changes, and continuing to identify 
new ways to reduce renewal EAD application processing times.\4\
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    \1\ See 81 FR 82398 (Nov. 18, 2016) (AC21 Final Rule). The final 
rule was issued after a proposed rule was published in the Federal 
Register. See 80 FR 81899 (Dec. 31, 2015) (AC21 NPRM).
    \2\ See 87 FR 26614 (May 4, 2022) (2022 TFR); 89 FR 24628 (Apr. 
8, 2024) (2024 TFR).
    \3\ 89 FR 24628, 24629 (Apr. 8, 2024).
    \4\ See 89 FR 24628, 24629 (Apr. 8, 2024).
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    After careful consideration of the public comments submitted in 
connection with the 2024 TFR, as well as the operational realities 
associated with the events described in the 2024 TFR, DHS has 
determined that the up to 180-day automatic extension under 8 CFR 
274a.13(d) does not provide USCIS enough time to address large spikes 
in EAD filings and other circumstances that may occur in the future and 
increase renewal EAD application processing times. DHS believes that a 
substantial number of renewal EAD applicants may, in the future, 
continue to face uncertainty about the risk of losing employment 
authorization and/or EAD validity through no fault of their own because 
of USCIS processing delays resulting from sporadic spikes in EAD 
filings or other unanticipated circumstances. The potential for gaps in 
employment authorization and EAD validity periods also creates 
uncertainty among U.S. employers.
    In addition, lapses in employment authorization and EAD validity 
can result in substantial harm to noncitizens, their families, their 
employers, and the public at large. To help prevent the harmful effects 
of these gaps, DHS is amending its existing regulations to permanently 
increase the automatic extension period applicable to expiring 
employment authorization and/or EADs for certain renewal applicants 
from up to 180 days to up to 540 days from the expiration date stated 
on their EADs. This final rule will be effective January 13, 2025. 
USCIS will also continue its efforts to reduce processing times for 
renewal EAD applications.

B. Summary of Legal Authority

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

C. Summary of Regulatory Changes

    Following careful consideration of the public comments received in 
response to the 2024 TFR, DHS is making the following changes to its 
employment authorization and verification regulations:
     Amending existing 8 CFR 274a.2(b)(1)(vii): DHS is deleting 
the language ``for up to 180 days,'' so that the paragraph describes 
the automatic extension period simply by referring to 8 CFR 274a.13(d) 
only. DHS is not changing the current reverification requirements an 
employer must follow for Form I-9, Employment Eligibility 
Verification,\5\ at 8 CFR 274a.2(b)(1)(vii) that apply to automatic 
extensions. Additionally, to simplify the regulatory text, DHS is 
making an editorial change by eliminating the section symbol before the 
citation to section 274a.13(d) and replacing it with the complete CFR 
citation, i.e., 8 CFR 274a.13(d).
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    \5\ Employers must verify the identity and employment 
authorization of their new hires by examining documentation that 
evidences such employment eligibility and completing Form I-9. See 
INA sec.274A(b)(1)(A), 8 U.S.C. 1324a(b)(1)(A).
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     Amending existing 8 CFR 274a.13(d)(1): DHS is amending the 
provision by combining the content previously contained in 8 CFR 
274a.13(d)(1), (d)(5) and (d)(6). The amended paragraph provides that 
the automatic extension period under 8 CFR 274a.13(d)(1) (in effect 
prior to the effective date of this final rule) for applicants who had 
their renewal EAD applications filed and adjudicated prior to May 4, 
2022, was 180 days. The amended provision also provides that the 
automatic extension period for renewal EAD applications pending on, or 
filed on or after May 4, 2022, is up to 540-days. Furthermore, DHS is 
clarifying that the up to 540-day EAD automatic extension period starts 
the day after the expiration date found on the face of the EAD.
     8 CFR 274a.13(d)(1)(i): DHS is amending paragraph 
(d)(1)(i) to clarify that a renewal EAD application for Temporary 
Protected Status (TPS)-related EADs is timely filed under 8 CFR 
274a.13(d)(1) when it is filed during the re-registration filing period 
in the applicable Federal Register notice. (Previously, the regulations 
contained a reference to the filing period; DHS is adding the term 
``re-registration for clarity.)
     Amending existing 8 CFR 274a.13(d)(3): DHS is eliminating 
the reference to the up to 180-day automatic extension period and 
replacing it with the up to 540-day period.
     Removing 8 CFR 274a.13(d)(5) and (d)(6): DHS is removing 
the provisions that were added as part of the 2022 TFR and the 2024 
TFR. DHS has incorporated applicable content as part of the amendments 
made to 8 CFR 274a.13(d)(1).
     Revising the authority citations to 8 CFR part 274a: DHS 
is revising the authority citation to 8 CFR part 274a by adding 8 
U.S.C. 1105a, which was inadvertently removed by another DHS rule. DHS 
is furthermore amending the authority by adding reference to INA 208, 
214, and 244, 8 U.S.C. 1158, 1184, and 1254a, that serve as sources of 
statutory authority for employment authorization.

D. Severability

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

[[Page 101210]]

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

E. Summary of Costs and Benefits

    This final rule--which finalizes the 2024 TFR and permanently 
increases the automatic extension period for employment authorization 
and the validity of certain EADs from up to 180 days to up to 540 
days--will provide long-term predictability and reduced anxiety around 
job stability for EAD renewal applicants. When unforeseen future 
circumstances cause processing times to extend beyond 180 days and 
result in large scale lapses in renewal EADs, this permanent adjustment 
of the automatic extension period to 540 days will result in benefits 
and cost savings, such as stabilized earnings and avoided labor 
turnover costs.
    USCIS examined the benefits of the 2022 TFR and 2024 TFR and 
estimates that from FY 2023 to FY 2027 these rules result in average 
stabilization of earnings worth $10.0 billion to employment-authorized 
noncitizens and average cost savings of $3.5 billion to U.S. employers 
from avoided labor turnover and are expected to yield an average $1.1 
billion in employment tax transfer payments using a 2 percent discount 
rate (see Table 17 for more information). While the EAD end dates are 
known to USCIS and can be used to accurately project at what date an 
EAD might lapse if not adjudicated, there is uncertainty around the 
monetized, economic impacts due to possible changes in the timing of 
EAD renewal filing behavior, adjudication resources and completion 
rates, and the duration of lapses experienced by workers of varying 
wages in the absence of any changes to the automatic extension period. 
The Regulatory Impact Analysis discusses the low and high-end estimates 
that bound the expected impacts described above.

II. Background

    Since the promulgation of 8 CFR 274a.13(d) in 2016,\6\ authorizing 
the up to 180-day automatic extension period for certain renewal EAD 
applicants, USCIS' ability to process both initial and renewal EAD 
applications within USCIS' targeted processing times has been adversely 
impacted by a variety of unforeseen events and circumstances.\7\ As a 
result, DHS has found it necessary to take actions to reduce the 
likelihood that applicants for renewal EADs who are eligible for an 
automatic extension of their EAD validity under 8 CFR 274a.13(d) 
experience lapses in their employment authorization and/or proof of 
employment authorization because of USCIS processing delays and through 
no fault of their own.\8\ DHS has found that such lapses in employment 
authorization and/or EAD validity could result in substantial and 
unnecessary harm to noncitizens who timely filed for extensions of 
employment authorization, their families, their employers, and the 
public at large.\9\
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    \6\ See 81 FR 82398 (Nov. 18, 2016).
    \7\ See 87 FR 26614, 26617-26 (May 4, 2022) (identifying USCIS' 
precarious fiscal status, the COVID-19 public health emergency, and 
dramatic increases in Form I-765 filings as some of the unforeseen 
events and circumstances); 89 FR 24628, 24634-40 (Apr. 8, 2024) 
(identifying, in addition to many of the same events and 
circumstances as the 2022 TFR, an increase in referrals to USCIS for 
Credible Fear Assessment and an increase in affirmative and 
defensive asylum filings as contributing factors to an increase in 
average processing time).
    \8\ See 87 FR 26614 (May 4, 2022); 89 FR 24628 (Apr. 8, 2024).
    \9\ These findings were made as part of the 2022 and 2024 TFRs. 
See 87 FR 26614, 26636 (May 4, 2022), 89 FR 24628, 24655 (Apr. 8, 
2024), for findings related to potential economic impacts caused by 
lapsed employment authorization and/or documentation.
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    In 2021, a surge in EAD applications, coupled with operational 
challenges exacerbated by the COVID-19 pandemic, resulted in a 
significant increase in renewal EAD application processing times.\10\ 
The processing times increased to such a level that the 180-day 
automatic extension for certain pending renewal EAD applications under 
8 CFR 274a.13(d) was insufficient to prevent many renewal applicants 
from experiencing a lapse in employment authorization and/or 
documentation while their renewal applications remained pending with 
USCIS.\11\
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    \10\ See 87 FR 26614, 26618 (May 4, 2022) (explaining that the 
COVID-19 pandemic exacerbated USCIS' precarious financial situation, 
while a sudden and dramatic increase in Form I-765 filings further 
hampered USCIS' efforts to return to a steady pace in 
adjudications).
    \11\ See 87 FR 26614, 26640 (May 4, 2022).
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    In May 2022, DHS published a temporary final rule (``2022 TFR'') 
that, for certain renewal EAD applications filed during a 540-day 
period that ended on October 26, 2023, increased the automatic 
extension period from up to 180 days to up to 540 days.\12\ This 
measure helped minimize gaps in employment authorization and/or EAD 
validity for eligible renewal EAD applicants, while giving USCIS the 
opportunity to address its backlogs through operational and sub-
regulatory measures and work toward its goal of returning to regular 3-
month processing times.
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    \12\ See 87 FR 26614 (May 4, 2022).
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    The 2022 TFR proved to be very successful at minimizing disruption 
to renewal EAD applicants and their U.S. employers that would have 
otherwise resulted from USCIS processing delays.\13\ Not only did the 
2022 TFR immediately restore employment authorization and/or EAD 
validity for approximately 70,000 renewal EAD applicants who were 
already beyond the up to 180-day automatic extension period when the 
2022 TFR published, but the 2022 TFR also helped nearly 280,000 renewal 
EAD applicants avoid a gap in employment authorization and/or 
employment authorization documentation based on renewal EAD 
applications filed from May 4, 2022 through October 26, 2023.\14\
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    \13\ See 89 FR 24628, 24634 (Apr. 8, 2024).
    \14\ Id.
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    However, for reasons fundamentally unrelated to the reasons stated 
in the 2022 TFR, the renewal EAD processing backlog grew despite USCIS' 
best efforts. In the middle of FY 2023, EAD application filings began 
to increase substantially. The historic 1 million application increase 
in initial and renewal EAD filings, compounded by the lack of a filing 
fee increase, the adjudicative demands of USCIS' responses to global 
humanitarian crises, and other increases in immigration benefit filings 
and court-ordered processing timeframes, created an insurmountable 
operational strain and increase in renewal EAD application processing 
times.\15\ The processing times were at such a level that the 180-day 
automatic extension period for certain renewal EAD applications 
remained insufficient to prevent a large

[[Page 101211]]

number of lapses projected to start in May 2024.
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    \15\ The continued lengthy processing times was primarily due to 
a substantial increase in the number of initial EAD applications 
based on pending asylum applications (C08) that began in March 2023 
and litigation regarding rules governing EAD applications that 
require USCIS to process initial EAD applications for asylum 
applicants within 30 days of filing. Other causes included a surge 
in initial EAD applications filed by individuals with pending asylum 
applications, the allocation of USCIS personnel to assist with 
historically high levels of encounters at the southwest land border 
between the ports of entry, and additional TPS designations in FY 
2022 and FY 2023.
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    Accordingly, DHS again took steps to help prevent certain renewal 
EAD applicants from experiencing a lapse in their employment 
authorization and/or documentation while their renewal applications 
remain pending while continuing to implement other solutions to return 
processing times to target levels. In April 2024, DHS published a 
temporary final rule (``2024 TFR'') that, for certain renewal EAD 
applications filed from October 27, 2023, through September 30, 2025, 
again temporarily increased the automatic extension period from up to 
180 days to up to 540 days.\16\
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    \16\ See 89 FR 24628 (Apr. 8, 2024). The 2024 TFR increased the 
automatic extension period from up to 180 days to up to 540 days for 
applicants who properly filed their EAD renewals on or after October 
27, 2023, and that remained pending on May 4, 2024, as well as 
renewal EAD applications filed from May 4, 2024, through September 
30, 2025.
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    USCIS projected that without the 2024 TFR, approximately 800,000 
renewal applicants would have been in danger of losing their employment 
authorization and/or documentation in the period beginning May 2024 and 
ending March 2026.\17\ If faced with a disruption of their employment 
authorization and/or documentation, these renewal applicants may have 
lost their jobs through no fault of their own, and their employers 
would have been faced with finding replacement workers, an undue burden 
that would have been exacerbated during a time when the U.S. economy 
has been experiencing more job openings than available workers.\18\
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    \17\ See 89 FR 24628, 24660 (Table 7) (Apr. 8, 2024).
    \18\ See 89 FR 24628, 24630 (Apr. 8, 2024).
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    With the 2024 TFR, DHS focused on near-term needs of applicants, 
their families, and employers by ensuring that, through the 2024 TFR, a 
substantially smaller number of applicants would experience near-term 
harmful effects that gaps in employment authorization and/or 
documentation could create. The 2024 TFR averted many of these imminent 
adverse consequences and provided DHS and USCIS with an additional 
window to consider long-term solutions by soliciting public comments, 
evaluating the effects of policy and operational changes, and 
continuing to identify new strategies and efficiencies in light of 
ongoing developments.\19\
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    \19\ See 89 FR 24628, 24629 (Apr. 8, 2024).
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    After carefully considering public comments, as well as the 
operational realities associated with the changes described in the 2024 
TFR, DHS has determined that the automatic extension period should be 
permanently increased from up to 180 days to up to 540 days. This final 
rule will be effective January 13, 2025.
    Permanently increasing the automatic extension period will help 
avoid the gaps in employment authorization and/or documentation that 
could otherwise affect eligible renewal EAD applicants, their families, 
and their U.S. employers in those cases where USCIS is unable to 
process their renewal applications within the 180-day automatic 
extension period provided under the current regulation because of 
circumstances that are beyond the control of the applicant.

A. Legal Authority

    The Secretary of Homeland Security's (Secretary) authority for the 
regulatory amendments made in this final rule are found in various 
sections of the Immigration and Nationality Act (INA or the Act), 8 
U.S.C. 1101 et seq., and the Homeland Security Act of 2002 (HSA), 
Public Law 107-296, 116 Stat. 2135 (codified in part at 6 U.S.C. 101 et 
seq.). General authority for issuing this rule is found in section 
103(a) of the INA, 8 U.S.C. 1103(a), which authorizes the Secretary to 
administer and enforce the immigration and nationality laws and 
establish such regulations as the Secretary deems necessary for 
carrying out such authority, as well as section 102 of the HSA, 6 
U.S.C. 112, which vests all of the functions of DHS in the Secretary 
and authorizes the Secretary to issue regulations.\20\ Further 
authority for this rule is found in:
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    \20\ Although several provisions of the INA discussed in this 
final rule refer exclusively to the ``Attorney General,'' such 
provisions are now to be read as referring to the Secretary of 
Homeland Security by operation of the HSA. See 6 U.S.C. 202(3), 251, 
271(b), 542 note, 557; 8 U.S.C. 1103(a)(1) and (g), 1551 note; 
Nielsen v. Preap, 586 U.S. 392, 397 n.2 (2019).
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     Section 208(d)(2) of the INA, 8 U.S.C. 1158(d)(2), which 
authorizes the Secretary to grant employment authorization to 
applicants for asylum if 180 days have passed since filing an 
application for asylum;
     Section 214 of the INA, 8 U.S.C. 1184, including section 
214(a)(1) of the INA, 8 U.S.C. 1184(a)(1), which authorizes the 
Secretary to prescribe, by regulation, the time and conditions of the 
admission of nonimmigrants;
     Section 244(a)(1)(B) of the INA, 8 U.S.C. 1254a(a)(1)(B), 
which states that the Secretary shall authorize employment and provide 
evidence of employment authorization for noncitizens who have been 
granted Temporary Protected Status;
     Section 274A(b) of the INA, 8 U.S.C. 1324a(b), which 
provides for the employment verification system and outlines employment 
eligibility verification requirements.
     Section 274A(h)(3)(B) of the INA, 8 U.S.C. 1324a(h)(3)(B), 
which recognizes the Secretary's authority to extend employment 
authorization to noncitizens in the United States; \21\ and
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    \21\ Courts have acknowledged that Congress delegated authority 
to DHS to grant or extend employment authorization to certain 
classes of noncitizens. See, e.g., Washington Alliance of Technology 
Workers v. DHS, 50 F.4th 164, 191-192 (D.C. Cir. 2022) (``What 
matters is that section 1324a(h)(3) expressly acknowledges that 
employment authorization need not be specifically conferred by 
statute; it can also be granted by regulation.''). DHS is exercising 
this discretionary authority consistent with all applicable 
authorities, including the referenced authorities in the HSA, and 
sections 103, 208, 214, 244 and 274A(h)(3) of the INA, 8 U.S.C. 
1103, 1158, 1184, 1254a and 1324a(h)(3), as well as the 
Administrative Procedure Act at 5 U.S.C. 553. See Loper Bright 
Enterprises v. Raimondo, 144 S. Ct. 2244, 2263 (2024) (``In a case 
involving an agency, of course, the statute's meaning may well be 
that the agency is authorized to exercise a degree of discretion. 
Congress has often enacted such statutes. For example, some statutes 
`expressly delegate' to an agency the authority to give meaning to a 
particular statutory term. Others empower an agency to prescribe 
rules to `fill up the details' of a statutory scheme, or to regulate 
subject to the limits imposed by a term or phrase that `leaves 
agencies with flexibility,' such as `appropriate' or 
`reasonable.''') (internal citations omitted).
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     Section 101(b)(1)(F) of the Homeland Security Act, 6 
U.S.C. 111(b)(1)(F), which establishes as a primary mission of DHS the 
duty to ``ensure that the overall economic security of the United 
States is not diminished by efforts, activities, and programs aimed at 
securing the homeland.''

B. Legal Framework for Employment Authorization and Verification

1. Types of Employment Authorization: 8 CFR 274a.12(a), (b), and (c)
    Whether a noncitizen is authorized to work in the United States 
depends on the noncitizen's immigration status or other conditions that 
may permit employment authorization (for example, having a pending 
application for asylum or a grant of deferred action). DHS regulations 
outline three classes of noncitizens who may be eligible for employment 
in the United States, as follows: \22\
---------------------------------------------------------------------------

    \22\ There are several employment-eligible categories that are 
not included in DHS regulations, but instead are described in the 
form instructions to Form I-765, Application for Employment 
Authorization (EAD application). Employment-authorized L 
nonimmigrant spouses are an example. See INA sec. 214(c)(2)(E), 8 
U.S.C. 1184(c)(2)(E).
---------------------------------------------------------------------------

     Noncitizens in the first class, described at 8 CFR 
274a.12(a), are authorized to work ``incident to status'' for any 
employer, as well as to engage

[[Page 101212]]

in self-employment, as a condition of their immigration status or 
circumstances. This means that for certain eligible noncitizens, 
employment authorization is granted with the underlying immigration 
status (called ``incident to status'' employment authorization). 
Although authorized to work as a condition of their status or 
circumstances, certain classes of noncitizens must apply to USCIS in 
order to receive a Form I-766 EAD as evidence of that employment 
authorization.\23\
---------------------------------------------------------------------------

    \23\ See 8 CFR 274a.12(a).
---------------------------------------------------------------------------

     Noncitizens in the second class, described at 8 CFR 
274a.12(b), also are authorized to work ``incident to status'' as a 
condition of their immigration status or circumstances, but generally 
the authorization is valid only with a specific employer.\24\ These 
noncitizens are issued an Arrival-Departure Record (Form I-94) 
indicating their employment-authorized status in the United States and 
in most cases do not file separate requests for evidence of employment 
authorization.
---------------------------------------------------------------------------

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

     Noncitizens in the third class, described at 8 CFR 
274a.12(c), are required to apply for employment authorization and may 
work only if USCIS, in its discretion, approves their application. They 
are authorized to work for any employer or engage in self-employment 
upon approval of their EAD application, subject to certain 
restrictions, so long as their EAD remains valid.\25\
---------------------------------------------------------------------------

    \25\ See 8 CFR 274a.12(c); Matter of Tong, 16 I&N Dec. 593, 595 
(BIA 1978) (holding that the term `` `employment' is a common one, 
generally used with relation to the most common pursuits,'' and 
includes ``the act of being employed for one's self'').
---------------------------------------------------------------------------

2. The Application Process for Obtaining Employment Authorization and 
EADs
    For certain eligibility categories listed in 8 CFR 274a.12(a) (the 
first class) and all eligibility categories listed in 8 CFR 274a.12(c) 
(the third class), as well as additional categories specified in the 
Form I-765 instructions,\26\ an EAD application must be properly filed 
with USCIS (with fee or fee waiver, as applicable) to receive 
employment authorization and/or an EAD.\27\ EADs issued under 8 CFR 
274a.12(a) or (c) generally allow these noncitizens to work for any 
U.S. employer or engage in self-employment, subject to certain 
restrictions, as applicable. If an EAD application is approved under 
CFR 274a.12(a), the resultant EAD provides the noncitizen with proof of 
employment authorization incident to status or circumstance. Certain 
noncitizens may file EAD applications concurrently with related benefit 
requests if permitted by the applicable form instructions or as 
announced by USCIS.\28\ In such instances, the underlying benefit 
requests, if granted, would form the basis for an EAD or eligibility to 
apply for employment authorization. For eligibility categories listed 
in 8 CFR 274a.12(a) and (c), USCIS has the discretion to establish a 
specific validity period for the EAD.\29\
---------------------------------------------------------------------------

    \26\ See DHS, USCIS, Form I-765, ``Instructions for Application 
for Employment Authorization,'' https://www.uscis.gov/sites/default/files/document/forms/i-765instr.pdf (last visited Feb. 7, 2024). In 
reviewing the EAD application, USCIS ensures that the fee was paid, 
a fee waiver was granted, or a fee exemption applies.
    \27\ See 8 CFR 103.2(a) and 8 CFR 274a.13(a). Some applicants 
who are employment authorized incident to status (e.g., asylees, 
refugees, TPS beneficiaries) may file an EAD application to obtain 
an EAD. Applicants who are filing within an eligibility category 
listed in 8 CFR 274a.12(c) must, by contrast, use the EAD 
application form to request both employment authorization and an 
EAD.
    \28\ See 8 CFR 274a.13(a). For example, the spouse of an H-1B 
worker may file an EAD application at the same time as their Form I-
539, Application to Extend/Change Nonimmigrant Status. See DHS, 
USCIS, Employment Authorization for Certain H-4, E Dependent Spouses 
(last reviewed/updated Aug. 2, 2024), https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/employment-authorization-for-certain-h-4-dependent-spouses (last visited Oct. 23, 2024).
    \29\ See 8 CFR 274.12(a) and (c).
---------------------------------------------------------------------------

3. Automatic Extensions of EADs for Renewal Applicants and Related 
Employment Eligibility Verification Requirements for Employers
i. Renewing Employment Authorization and/or EADs
    Temporary employment authorization and EADs generally are not valid 
indefinitely but instead expire after a specified period of time.\30\ 
Generally, noncitizens within the eligibility categories listed in 8 
CFR 274a.12(c) must obtain a renewal of employment authorization and 
their EADs before the expiration date stated on their current EADs, or 
they will lose their eligibility to work in the United States (unless, 
since obtaining their current EADs, the noncitizens have obtained an 
immigration status or belong to a class of individuals with employment 
authorization incident to that status or class, or obtain employment 
authorization based on another category).\31\ The same holds true for 
some classes of noncitizens authorized to work incident to status whose 
EAD expiration dates coincide with the termination or expiration of 
their underlying immigration status. Other noncitizens authorized to 
work incident to status, such as asylees, refugees, and TPS 
beneficiaries, may have immigration status that confers employment 
authorization that continues past the expiration date stated on their 
EADs. Nevertheless, such noncitizens may wish to renew their EAD to 
have acceptable evidence of their continuous employment authorization 
for various purposes, such as presenting evidence of employment 
authorization and identity to their employers for completion of Form I-
9, Employment Eligibility Verification. Failure to renew their EADs 
prior to the expiration date may result in job loss if such noncitizens 
do not have or cannot present alternate acceptable evidence of 
employment authorization to show their employers, as employers who 
continue to employ noncitizens without employment authorization may be 
subject to criminal penalties and/or civil monetary penalties.\32\
---------------------------------------------------------------------------

    \30\ See 8 CFR 274a.13(b). But see 8 CFR 274a.14 (setting forth 
the bases for termination or revocation of employment 
authorization).
    \31\ See 8 CFR 274a.14(a)(1)(i).
    \32\ The employee must present the employer with acceptable 
documents evidencing identity and employment authorization. The 
lists of acceptable documents can be found on Form I-9. See DHS, 
USCIS, Form I-9, ``Employment Eligibility Verification,'' https://www.uscis.gov/sites/default/files/document/forms/i-9.pdf (last 
visited Oct. 23, 2024). An employer that does not properly complete 
Form I-9, which includes reverifying continued employment 
authorization, or continues to employ an individual with knowledge 
that the individual is not authorized to work, may be subject to 
civil money penalties. See DHS, USCIS, M-274, Handbook for 
Employers, 11.8 Penalties for Prohibited Practices, https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274/110-unlawful-discrimination-and-penalties-for-prohibited-practices/118-penalties-for-prohibited-practices (last visited Feb. 
7, 2024). In addition, an employer who engages in a ``pattern or 
practice'' of employing unauthorized individuals may face criminal 
penalties under 8 U.S.C. 1324a(f). U.S. Immigration and Customs 
Enforcement has primary enforcement responsibilities for enforcement 
of the civil monetary penalties under INA sec. 274A, 8 U.S.C. 1324a.
---------------------------------------------------------------------------

    Those seeking to renew previously granted employment authorization 
or obtain new EADs must file renewal EAD applications with USCIS in 
accordance with the form instructions.\33\
---------------------------------------------------------------------------

    \33\ See 8 CFR 103.2, 106.2, and 274a.13(a); see DHS, USCIS, 
Form I-765, Instructions for Application for Employment 
Authorization, https://www.uscis.gov/sites/default/files/document/forms/i-765instr.pdf (last visited Oct. 23, 2024). In reviewing the 
EAD application, USCIS ensures that the fee was paid, a fee waiver 
was granted, or a fee exemption applies.
---------------------------------------------------------------------------

ii. Minimizing the Risk of Gaps in Employment Authorization and/or EAD 
Validity Through Automatic Extensions
    If an eligible noncitizen is not able to obtain renewal of their 
employment authorization and/or EAD before it expires, the noncitizen 
and the employer could experience adverse

[[Page 101213]]

consequences. For the noncitizen, the lack of renewal could cause job 
loss, gaps in employment authorization and/or documentation, and loss 
of income. For the noncitizen's employer, the disruption may cause 
instability with business continuity or other financial harm. In 
addition, under 8 CFR 274a.2(b)(1)(vii), if an employee's employment 
authorization and/or documentation expires, their employer must 
reverify or update the employee's Form I-9 to reflect that the employee 
is still authorized to work in the United States; otherwise, the 
employee can no longer work. No later than the date employment 
authorization expires, employees must present unexpired acceptable 
documentation that demonstrates continued authorization to work.\34\ 
The employer is required to reverify or update information on the 
employee's Form I-9 to record the employee's evidence of continued 
employment authorization. Employers who fail to properly complete Forms 
I-9 including reverification are subject to civil money penalties for 
paperwork violations.\35\ Employers must terminate employment of 
employees who have gaps in their employment authorization documentation 
and are not able to reverify or risk being fined under the employer 
sanctions provisions in section 274A of the INA, 8 U.S.C. 1324a.
---------------------------------------------------------------------------

    \34\ See DHS, USCIS, M-274, Handbook for Employers, 6.1, 
Reverifying Employment Authorization for Current Employees, https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274/60-completing-supplement-b-reverification-and-rehire-of-form-i-9/61-reverifying-employment-authorization-for-current-employees 
(last visited Aug. 2, 2024).
    \35\ See INA sec. 274A(e)(5), 8 U.S.C. 1324a(e)(5).
---------------------------------------------------------------------------

    Beyond the financial and economic impact that gaps in employment 
authorization or proof thereof creates for the noncitizen and the 
employer, if the noncitizen engages in unauthorized employment, such 
activity may render a noncitizen removable,\36\ render a noncitizen 
ineligible for future benefits such as adjustment of status,\37\ and/or 
subject the employer to civil and/or criminal penalties.\38\
---------------------------------------------------------------------------

    \36\ See, e.g., INA sec. 237(a)(1)(C), 8 U.S.C. 1227(a)(1)(C); 8 
CFR 214.1(e).
    \37\ See INA sec. 245(c), (k); 8 U.S.C. 1255(c), (k).
    \38\ See INA sec. 274A, 8 U.S.C. 1324a.
---------------------------------------------------------------------------

    Before 2016, DHS regulations stated that USCIS would ``adjudicate 
an application [for an EAD] within 90 days'' from the date USCIS 
received the application.\39\ If USCIS did not adjudicate the 
application within that timeframe, the applicant was eligible for an 
interim document evidencing employment authorization with a validity 
period not to exceed 240 days. On November 18, 2016, as part of DHS's 
efforts to implement the flexibilities provided to noncitizens and 
employers by the American Competitiveness in the Twenty-first Century 
Act of 2000 (AC21), as amended, and the American Competitiveness and 
Workforce Improvement Act of 1998, DHS published a final regulation 
\40\ removing the provision and replacing it with the current 8 CFR 
274a.13(d).
---------------------------------------------------------------------------

    \39\ See 8 CFR 274a.13(d) (2016).
    \40\ See 81 FR 82398 (Nov. 18, 2016) (``AC21 Final Rule''). The 
final rule was issued after a proposed rule was published in the 
Federal Register. See 80 FR 81899 (Dec. 31, 2015) (``AC21 NPRM'').
---------------------------------------------------------------------------

    To prevent gaps in employment authorization and/or documentation 
and related consequences for certain renewal applicants,\41\ and in 
light of processing times and possible filing surges,\42\ DHS changed 
its regulations at 8 CFR 274a.13(d) such that under the current 
provision, and except as otherwise provided by law, certain categories 
of renewal applicants receive an automatic extension of their EADs 
(and, if applicable, related employment authorization) for up to 180 
days from the expiration date on the EAD.\43\ To receive the automatic 
extension, an eligible renewal applicant must meet the following 
conditions:
---------------------------------------------------------------------------

    \41\ See 80 FR 81899, 81927 (Dec. 31, 2015) (``DHS proposes to 
amend its regulations to help prevent gaps in employment 
authorization for certain employment-authorized individuals who are 
seeking to renew expiring EADs. These provisions would significantly 
mitigate the risk of gaps in employment authorization and required 
documentation for eligible individuals, thereby benefitting them and 
their employers.'').
    \42\ See 80 FR 81899, 81927 (Dec. 31, 2015) (``DHS believes that 
this time period [of up to 180 days] is reasonable and provides more 
than ample time for USCIS to complete the adjudication process based 
on USCIS' current 3-month average processing time for Applications 
for Employment Authorization.''), 81927 n.77 (``Depending on any 
significant surges in filings, however, there may be periods in 
which USCIS takes longer than 2 weeks to issue Notices of Action 
(Forms I-797C).'').
    \43\ 8 CFR 274a.13(d); see also 81 FR 82398, 82455-82463 (Nov. 
18, 2016).
---------------------------------------------------------------------------

     The renewal applicant timely files an application to renew 
the employment authorization and/or EAD before the EAD expires; \44\
---------------------------------------------------------------------------

    \44\ 8 CFR 274a.13(d)(1)(i). TPS beneficiaries must file during 
the re-registration period in the applicable Federal Register 
notice; see 81 FR 82398, 82455 (Nov. 18, 2016).
---------------------------------------------------------------------------

     The renewal EAD application is based on the same 
employment authorization category shown on the front of the expiring 
EAD or, for an individual approved for TPS, whose EAD was issued 
pursuant to either 8 CFR 274a.12(a)(12) or (c)(19); \45\ and
---------------------------------------------------------------------------

    \45\ See 8 CFR 274a.13(d)(1)(ii) (exempting individuals approved 
for TPS with EADs issued pursuant to 8 CFR 274a.12(c)(19) from the 
requirement that the employment authorization category on the face 
of the expiring EAD be the same as on the renewal EAD application).
---------------------------------------------------------------------------

     The renewal applicant's eligibility to apply for 
employment authorization continues notwithstanding the expiration of 
the EAD and is based on an employment authorization category that does 
not require the adjudication of an underlying application or petition 
before the adjudication of the renewal application, as may be announced 
on the USCIS website.\46\
---------------------------------------------------------------------------

    \46\ See 8 CFR 274a.13(d)(1)(iii).
---------------------------------------------------------------------------

    The following classes of noncitizens filing to renew an EAD may be 
eligible to receive an automatic extension of their employment 
authorization and/or EAD for up to 180 days: \47\
---------------------------------------------------------------------------

    \47\ See DHS, USCIS, Automatic Employment Authorization (EAD) 
Extension (last reviewed/updated Oct. 9, 2024), https://www.uscis.gov/working-in-the-united-states/information-for-employers-and-employees/automatic-employment-authorization-document-ead-extension (last visited Oct. 23, 2024).
---------------------------------------------------------------------------

     Noncitizens admitted as refugees (A03); \48\
---------------------------------------------------------------------------

    \48\ See 8 CFR 274a.12(a)(3).
---------------------------------------------------------------------------

     Noncitizens granted asylum (A05); \49\
---------------------------------------------------------------------------

    \49\ See 8 CFR 274a.12(a)(5).
---------------------------------------------------------------------------

     Noncitizens admitted as parents or dependent children of 
noncitizens granted permanent residence under section 101(a)(27)(I) of 
the INA, 8 U.S.C. 1101(a)(27)(I) (A07); \50\
---------------------------------------------------------------------------

    \50\ See 8 CFR 274a.12(a)(7).
---------------------------------------------------------------------------

     Noncitizens admitted to the United States as citizens of 
the Federated States of Micronesia, the Republic of the Marshall 
Islands, or the Republic of Palau pursuant to agreements between the 
United States and the former trust territories (A08); \51\
---------------------------------------------------------------------------

    \51\ See 8 CFR 274a.12(a)(8).
---------------------------------------------------------------------------

     Noncitizens granted withholding of deportation or removal 
(A10); \52\
---------------------------------------------------------------------------

    \52\ See 8 CFR 274a.12(a)(10).
---------------------------------------------------------------------------

     Noncitizens granted TPS, if the employment authorization 
category on their current EAD is either A12 or C19 (A12); \53\
---------------------------------------------------------------------------

    \53\ See 8 CFR 274a.12(a)(12) or (c)(19).
---------------------------------------------------------------------------

     Noncitizen spouses of E-1/2/3 nonimmigrants (Treaty 
Trader/Investor/Australian Specialty Worker) (A17); \54\
---------------------------------------------------------------------------

    \54\ See INA sec. 214(e)(2), 8 U.S.C. 1184(e)(2).
---------------------------------------------------------------------------

     Noncitizen spouses of L-1 nonimmigrants (Intracompany 
Transferees) (A18); \55\
---------------------------------------------------------------------------

    \55\ See INA sec. 214(c)(2)(E), 8 U.S.C. 1184(c)(2)(E).
---------------------------------------------------------------------------

     Noncitizens who have filed applications for asylum and 
withholding of deportation or removal (C08); \56\
---------------------------------------------------------------------------

    \56\ See 8 CFR 274a.12(c)(8).
---------------------------------------------------------------------------

     Noncitizens who have filed applications for adjustment of 
status to lawful permanent resident under

[[Page 101214]]

section 245 of the INA, 8 U.S.C. 1255 (C09); \57\
---------------------------------------------------------------------------

    \57\ See 8 CFR 274a.12(c)(9). In certain adjustment of status 
cases, if the applicant seeks an EAD and advance parole (by filing 
Form I-131, Application for Travel Document), USCIS may issue an 
employment authorization card combined with an Advance Parole Card 
(Form I-512). This is also referred to as a ``combo card.'' If the 
EAD card is combined with the advance parole authorization (the EAD 
card has an annotation ``SERVES AS I-512 ADVANCE PAROLE''), any 
automatic extension does not apply to the advance parole part of the 
combo card.
---------------------------------------------------------------------------

     Noncitizens who have filed applications for suspension of 
deportation under section 244 of the INA (as it existed prior to April 
1, 1997), cancellation of removal pursuant to section 240A of the INA, 
or special rule cancellation of removal under section 309(f)(1) of the 
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 
(C10); \58\
---------------------------------------------------------------------------

    \58\ See 8 CFR 274a.12(c)(10).
---------------------------------------------------------------------------

     Noncitizens who have filed applications for creation of 
record of lawful admission for permanent residence (C16); \59\
---------------------------------------------------------------------------

    \59\ See 8 CFR 274a.12(c)(16).
---------------------------------------------------------------------------

     Noncitizens who have filed applications for TPS and who 
have been deemed prima facie eligible for TPS under 8 CFR 244.10(a) and 
have received an EAD as a ``temporary treatment benefit'' under 8 CFR 
244.10(e) and 274a.12(c)(19) (C19); \60\
---------------------------------------------------------------------------

    \60\ See 8 CFR 274a.12(c)(19).
---------------------------------------------------------------------------

     Noncitizens who have filed legalization applications 
pursuant to section 210 of the INA, 8 U.S.C. 1160 (C20); \61\
---------------------------------------------------------------------------

    \61\ See 8 CFR 274a.12(c)(20).
---------------------------------------------------------------------------

     Noncitizens who have filed legalization applications 
pursuant to section 245A of the INA, 8 U.S.C. 1255a (C22); \62\
---------------------------------------------------------------------------

    \62\ See 8 CFR 274a.12(c)(22).
---------------------------------------------------------------------------

     Noncitizens who have filed applications for adjustment of 
status pursuant to section 1104 of the Legal Immigration Family Equity 
Act (C24); \63\
---------------------------------------------------------------------------

    \63\ See 8 CFR 274a.12(c)(24).
---------------------------------------------------------------------------

     Certain noncitizen spouses (H-4) of H-1B nonimmigrants 
with an unexpired Form I-94 showing H-4 nonimmigrant status (C26); \64\ 
and
---------------------------------------------------------------------------

    \64\ See 8 CFR 274a.12(c)(26).
---------------------------------------------------------------------------

     Noncitizens who are the principal beneficiaries or 
derivative children of approved Violence Against Women Act (VAWA) self-
petitioners,\65\ under the employment authorization category 
``(c)(31)'' in the form instructions to the EAD application (C31).\66\
---------------------------------------------------------------------------

    \65\ Family-based immigration generally requires U.S. citizens 
and lawful permanent residents to file a petition on behalf of their 
noncitizen family members. Some petitioners may misuse this process 
to further abuse their noncitizen family members by threatening to 
withhold or withdraw sponsorship in order to control, coerce, and 
intimidate them. With the passage of VAWA and its subsequent 
reauthorizations, Congress provided noncitizens who have been abused 
by their U.S. citizen or lawful permanent resident relative the 
ability to petition for themselves (self-petition) without the 
abuser's knowledge, consent, or participation in the process. The 
VAWA provisions allow victims to seek both safety and independence 
from their abusers.
    \66\ INA sec. 204(a)(1)(D)(i)(II), (IV), (a)(1)(K), 8 U.S.C. 
1154(a)(1)(D)(i)(II), (IV), (a)(1)(K).
---------------------------------------------------------------------------

    The extension automatically terminates the earlier of up to 180 
days after the expiration date on the face of the EAD, or upon issuance 
of notification of a decision denying the renewal request.\67\ An EAD 
that is expired on its face is considered unexpired when combined with 
a Form I-797C receipt notice indicating a timely filing of the 
application to renew the EAD when the automatic extension requirements 
are met.\68\ Therefore, when the ``card expires'' date on the front of 
the EAD is reached, an eligible noncitizen who is continuing their U.S. 
employment may present to their employer the Form I-797C receipt notice 
for the renewal EAD application to show that the validity of their EAD 
has been automatically extended as evidence of continued employment 
authorization, and the employer must update the previously completed 
Form I-9, Employment Eligibility Verification, to reflect the extended 
EAD expiration date based on the automatic extension while the renewal 
is pending. For new employment, the automatic extension date is 
recorded on the Form I-9 by the employee and the employer in the first 
instance. In either case, reverification of employment authorization or 
the EAD must occur when the automatic extension period terminates.\69\
---------------------------------------------------------------------------

    \67\ See 8 CFR 274a.13(d)(3).
    \68\ See 8 CFR 274a.13(d)(4).
    \69\ See DHS,USCIS, ``Completing Supplement B, Reverification 
and Rehires (formerly Section 3),'' https://www.uscis.gov/i-9-central/complete-correct-form-i-9/completing-supplement-b-reverification-and-rehires-formerly-section-3 (last visited Nov. 3, 
2023); see also DHS, USCIS, M-274 Handbook for Employers, 5.2 
Temporary Increase of Automatic Extension of EADs from 180 Days to 
540 Days (last reviewed/updated Apr. 8, 2024), https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274/50-automatic-extensions-of-employment-authorization-andor-employment-authorization-documents-eads-in/52-temporary-increase-of-automatic-extension-of-eads-from-180-days-to-540-days (last visited 
Oct. 23, 2024).
---------------------------------------------------------------------------

    USCIS generally recommends the filing of a renewal EAD application 
up to 180 days before the current EAD expires.\70\ If the renewal 
application is granted, the employment authorization and/or the new EAD 
generally will be valid as of the date of approval of the application. 
If the application is denied, the automatically extended employment 
authorization and/or EAD generally is terminated on the day of the 
denial.\71\ If the renewal application was timely and properly filed, 
but remains pending beyond the 180-day automatic extension period, the 
applicant must stop working upon the expiration of the automatically 
extended validity period and the employer must remove the employee from 
the payroll if the applicant/employee cannot provide other acceptable 
evidence of current employment authorization.\72\ As a result, both the 
employee and the employer may experience the negative consequences of 
gaps in employment authorization and/or EAD validity.
---------------------------------------------------------------------------

    \70\ See DHS, USCIS, ``I-765, Application for Employment 
Authorization,'' https://www.uscis.gov/i-765 (last visited Oct.23, 
2024); DHS, USCIS, Employment Authorization Document (last reviewed/
updated June 7, 2024), https://www.uscis.gov/green-card/green-card-processes-and-procedures/employment-authorization-document (last 
visited Oct. 23, 2024); see also 81 FR 82398, 82456.
    \71\ See 8 CFR 274a.13(d)(3).
    \72\ See 8 CFR 274a.2(b)(vii) (reverification provision).
---------------------------------------------------------------------------

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

C. 2022 Temporary Final Rule

1. Overview
    In 2022, processing times for EAD applications had increased due to 
operational challenges that were exacerbated by the emergency measures 
USCIS employed to maintain its operations through the height of the 
COVID-19 pandemic in 2020, combined with a sudden increase in EAD 
application filings. The up to 180-day automatic extension period for 
renewal EAD applicants' employment authorization and/or EADs was no 
longer sufficient to prevent lapses in employment authorization and/or 
documentation for these applicants.
    To mitigate the impact of these operational challenges, on May 4, 
2022, DHS published a TFR titled ``Temporary Increase of the Automatic 
Extension Period of Employment Authorization and Documentation for 
Certain Renewal Applicants'' (2022 TFR) in the Federal Register.\73\ 
The rule temporarily amended DHS regulations at 8 CFR 274a.13(d) by 
adding a new paragraph 8 CFR 274a.13(d)(5), which lengthened the 
automatic extension period provided in that section from up to 180 days 
to up to 540 days for those

[[Page 101215]]

categories described in the 2022 TFR, if the renewal applicant timely 
filed an renewal EAD application.\74\ That increase was available to 
eligible renewal applicants whose EAD applications were pending as of 
May 4, 2022, including those applicants whose employment authorization 
had already lapsed following the initial 180-day extension period, and 
to eligible applicants who filed a renewal EAD application during the 
540-day period beginning on or after May 4, 2022, and ending October 
26, 2023.\75\ On October 27, 2023, the automatic extension renewal 
period reverted to 180 days (the automatic extension period under 8 CFR 
274a.13(d)(1)) for eligible renewal EAD applications filed on or after 
October 27, 2023.\76\
---------------------------------------------------------------------------

    \73\ 87 FR 26614 (May 4, 2022).
    \74\ See 8 CFR 274a.13(d); see also 87 FR 26614, 26651 (May 4, 
2022).
    \75\ See 8 CFR 274a.13(d); see also 87 FR 26614, 26651 (May 4, 
2022).
    \76\ See 87 FR 26614, 26631 (May 4, 2022).
---------------------------------------------------------------------------

2. Impact of the 2022 Temporary Final Rule
    The 2022 TFR proved to be very successful at minimizing disruption 
to renewal EAD applicants and their U.S. employers that would have 
otherwise resulted from USCIS processing delays. Not only did the 2022 
TFR immediately restore employment authorization and EAD validity for 
approximately 70,000 renewal EAD applicants who were already beyond the 
up to 180-day automatic extension period when the 2022 TFR published, 
but the 2022 TFR also helped nearly 280,000 renewal EAD applicants 
avoid a gap in employment authorization and/or employment authorization 
documentation based on applications filed on or after May 4, 2022, and 
on or before October 26, 2023.\77\
---------------------------------------------------------------------------

    \77\ Source: USCIS analysis of renewal EAD automatic extension 
expirations data, provided by DHS, USCIS, Office of Performance and 
Quality (OPQ), Claims 3 database; data provided November 2023.
---------------------------------------------------------------------------

D. 2024 Temporary Final Rule

1. Overview
    Although the 2022 TFR prevented a substantial number of individuals 
from experiencing a lapse in their employment authorization and/or 
documentation, new circumstances fundamentally unrelated to the reasons 
that lead up to the 2022 TFR caused the processing times for renewal 
EAD applications to remain at such a level that the 180-day automatic 
extension period remained insufficient to prevent a large number of 
lapses projected to start in May 2024. The continued lengthy processing 
times was primarily due to a substantial increase in the number of 
initial EAD applications based on pending asylum applications (C08) 
that began in March 2023 and litigation regarding rules that require 
USCIS to process initial EAD applications for asylum applicants within 
30 days of filing. Other causes included the allocation of USCIS 
personnel to assist with historically high levels of encounters at the 
southwest land border between the ports of entry, and additional TPS 
designations in FY 2022 and FY 2023.
    Accordingly, DHS again took steps to help prevent certain renewal 
EAD applicants from experiencing a lapse in their employment 
authorization and/or documentation while their renewal applications 
remain pending while continuing to implement other solutions to return 
processing times to target levels. On April 8, 2024, DHS published a 
temporary final rule (``2024 TFR'') that, for certain renewal EAD 
applications filed beginning April 8, 2024, and ending on September 30, 
2025, temporarily increased the automatic extension period from up to 
180 days to up to 540 days. The 2024 TFR also increased the automatic 
extension period from up to 180 days to up to 540 days for applicants 
who properly filed their EAD renewals on or after October 27, 2023, and 
whose applications remained pending on or after April 8, 2024.\78\
---------------------------------------------------------------------------

    \78\ See 89 FR 24628, 24630 (Apr. 8, 2024).
---------------------------------------------------------------------------

    Without the 2024 TFR, USCIS projected that approximately 800,000 
renewal applicants would have been in danger of losing their employment 
authorization and/or documentation in the period beginning May 2024 and 
ending March 2026.\79\ If faced with a disruption of their employment 
authorization and/or documentation, these renewal applicants might have 
lost their jobs through no fault of their own, and employers may have 
been faced with finding replacement workers, an undue burden that is 
exacerbated during a time when the U.S. economy has been experiencing 
more job openings than available workers.\80\
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    \79\ USCIS projections based on data available on July 1, 2024, 
show that this number is now approximately 388,000. See section 
V.A.2., Background and Population, Table 12, Population Projections 
by Month, Rounded to Thousands.
    \80\ See 89 FR 24628, 24630 (April 8, 2024). At the time, the 
Bureau of Labor Statistics data showed that, as of December 2023, 
there were 0.7 unemployed persons per job opening. See U.S. 
Department of Labor, U.S. Bureau of Labor Statistics, ``Number of 
unemployed persons per job opening, seasonally adjusted,'' https://www.bls.gov/charts/job-openings-and-labor-turnover/unemp-per-job-opening.htm (last visited Feb. 6, 2024).
---------------------------------------------------------------------------

2. Impact of the 2024 Temporary Final Rule
    As with the 2022 TFR, the 2024 TFR succeeded at minimizing 
disruption to renewal EAD applicants and their U.S. employers that 
would have otherwise resulted from USCIS processing delays. The 2024 
TFR was projected to prevent approximately 540,000 applicants from 
experiencing a temporary lapse in employment authorization and/or 
employment authorization documentation during the 2-year period 
beginning May 2024.\81\ As of July 1, 2024, approximately 3,500 renewal 
applicants avoided at least 1 day of lapse in employment authorization 
and/or documentation due to the 2024 TFR.\82\ The 2024 TFR also 
provided DHS and USCIS with additional time to consider long-term 
solutions by soliciting public comments, evaluating the effects of 
policy and operational changes, and continuing to identify new 
strategies and efficiencies in light of ongoing developments.\83\
---------------------------------------------------------------------------

    \81\ See 89 FR 24628, 24659, Table 6A.
    \82\ Source: USCIS analysis of renewal EAD automatic extension 
expirations data, provided by DHS, USCIS, OPQ, Claims 3 database; 
data provided July 24, 2024. See section VI.A.2, Background and 
Population, for more information.
    \83\ See 89 FR 24628, 24629 (Apr. 8, 2024).
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III. Purpose and Discussion of the Final Rule

    From time to time, one or more circumstances affecting USCIS 
operations have resulted in a significant increase in USCIS processing 
times for certain automatic extension-eligible categories of renewal 
EAD applications. Since the promulgation of the 180-day automatic 
extension rule in 2016, DHS deemed it necessary to issue TFRs in 2022 
and 2024 to temporarily increase the automatic extension period to 540 
days because a variety of circumstances resulted in processing times 
longer than the 180-day automatic extension period.\84\ These TFRs were 
necessary to prevent a substantial number of renewal EAD applicants 
from experiencing a lapse in their employment authorization and/or 
documentation and to avert the significant harmful effect such lapses 
have for applicants, their families, their employers, and the public at 
large.
---------------------------------------------------------------------------

    \84\ See 87 FR 26614 (May 4, 2022), 89 FR 24628 (Apr. 8, 2024).
---------------------------------------------------------------------------

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

[[Page 101216]]

2025.\85\ Given the history of filing surges and other unpredictable 
circumstances that have adversely impacted renewal EAD application 
processing times since the original automatic extension provision was 
promulgated in 2016,\86\ DHS has now determined that a permanent 
increase in the automatic extension period from up to 180 days to up to 
540 days is necessary for the long-term protection of applicants from a 
lapse in their employment authorization and/or documentation. DHS 
believes that if the automatic extension period is not permanently 
increased from up to 180 days to up to 540 days, many renewal EAD 
applicants may be in danger of experiencing a gap in employment 
authorization and/or EAD validity again in the future. Such lapses in 
employment authorization and EAD validity would result in substantial 
and unnecessary harm to noncitizens who timely filed for extensions of 
employment authorization, their families, their employers, and the 
public at large.
---------------------------------------------------------------------------

    \85\ This final rule incorporates the content of the automatic 
extension provisions at 8 CFR 274a.13(d)(5) (promulgated under the 
2022 TFR) and (d)(6) (promulgated under the 2024 TFR) into 8 CFR 
274a.13(d)(1) and removes them from the CFR. 8 CFR 274a.13(d)(5) was 
effective until October 26, 2023, and, but for this final rule, 
would have remained in the CFR until October 15, 2025. But for this 
final rule, 8 CFR 274a.13(d)(6) would have been effective until 
September 30, 2025, and would have remained in the CFR until 
September 20, 2027. Thus, in this final rule, DHS is accounting for 
the content of both 8 CFR 274a.13(d)(5) and (d)(6) periods and the 
adoption of a permanent 540-day automatic extension period effective 
going forward. To simplify the regulatory text but maintain the 
content of all provisions for Form I-9, Employment Eligibility 
Verification, purposes, DHS is consolidating all of the automatic 
extension periods into one provision at 8 CFR 274a.13(d)(1). 
Applicants eligible for the up to 540-day automatic extension period 
under 8 CFR 274a.13(d)(5) and (d)(6) continue to be eligible under 
this final rule. This final rule, however, does not grant additional 
540-day extension periods to those who were previously able to take 
advantage of a 540-day automatic extension period, even if the case 
remains pending at or before the 540-day mark under previous DHS 
rules.
    \86\ 81 FR 82398, 82455 (Nov. 18, 2016).
---------------------------------------------------------------------------

    To avert possible gaps in employment authorization and/or EAD 
validity for certain renewal EAD applicants and the harmful effects 
caused by such lapses, DHS is permanently amending existing DHS 
regulations to increase the automatic extension period to up to 540 
days from the expiration date stated on their EADs. DHS is taking this 
step after having published two TFRs addressing the matter and seeking 
public comments on long-term solutions.\87\ DHS is applying this rule 
to all renewal EAD application categories eligible for automatic 
extension pursuant to 8 CFR 274a.13(d).
---------------------------------------------------------------------------

    \87\ In both TFRs, DHS sought public comments. As provided in 
Section IV, Discussion of Public Comments, as part of the 2024 TFR, 
DHS not only sought comments on the entire rule, but also asked 
commenters specifically to address options for long-term solutions, 
including whether the solution provided in the TFR should be made 
permanent or be subject to modification. See 2024 TFR, at 24628. In 
this final rule, DHS is responding to these comments and finalizing 
the approach by permanently codifying in DHS regulations the 
solutions of the prior TFRs. Therefore, this final rule complies 
with the procedural requirements for rulemaking under the 
Administrative Procedure Act (APA), 5 U.S.C. 553, having provided 
adequate notice and an opportunity to comment before promulgating 
this final rule. See Little Sisters of the Poor Saints Peter & Paul 
Home v. Pennsylvania, 591 U.S. 657, 684-687 (2020) (holding that an 
interim final rule's ``request for comments readily satisfied the 
APA notice requirements'').
---------------------------------------------------------------------------

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

A. Circumstances Resulting in the 2022 Temporary Final Rule

1. USCIS Enjoined From Increasing Its Filing Fees
    USCIS is a fee-based agency that relies on predictable fee revenue 
and its carryover from the previous year. USCIS began experiencing 
fiscal troubles in early December 2019, when at least one USCIS 
directorate initiated a hiring freeze.\88\ These fiscal troubles were 
due in part to the fact that USCIS had not been able to update its fee 
structure since the 2016 Fee Rule \89\ (including fees for Form I-765), 
meaning that USCIS was unable to fully cover the costs of administering 
current and projected volumes of immigration benefit requests.
---------------------------------------------------------------------------

    \88\ USCIS' Field Operations Directorate (FOD) initiated a 
hiring freeze in December 2019; USCIS' Service Center Operations 
Directorate (SCOPS) did the same starting in February 2020.
    \89\ See 81 FR 73292, 73302 (Oct. 24, 2016).
---------------------------------------------------------------------------

    DHS promulgated a new Fee Rule in August 2020 to address this 
disparity between its filing fees and the costs of adjudicating 
immigration benefit requests.\90\ In September 2020, however, the 2020 
Fee Rule was enjoined before it took effect.\91\ As such, the fee for 
Form I-765 remained at $410, which was the fee set by the earlier 2016 
Fee Rule.\92\ The 2016 Fee Rule also exempted applicants from paying a 
fee if filing a Form I-765 to request a renewal or replacement EAD 
under 8 CFR 274a.12(c)(9) (pending adjustment of status application), 
as well as some additional categories.\93\
---------------------------------------------------------------------------

    \90\ See U.S. Citizenship and Immigration Services Fee Schedule 
and Changes to Certain Other Immigration Benefit Request 
Requirements, 85 FR 46788 (Aug. 3, 2020) (``2020 Fee Rule''). The 
2020 Fee Rule, among other things, adjusted certain immigration and 
naturalization benefit request fees charged by USCIS, removed 
certain fee exemptions, and changed the fee waiver requirement.
    \91\ On September 29, 2020, the U.S. District Court for the 
Northern District of California in Immigration Legal Resource 
Center, et al. v. Wolf, et al., 20-cv-05883-JWS, preliminarily 
enjoined DHS from implementing or enforcing any part of the 2020 Fee 
Rule.
    \92\ See 81 FR 73292 (Oct. 24, 2016).
    \93\ See 85 FR 46788 (Aug. 3, 2020). Additional categories 
exempt from the filing fee include 8 CFR 274a.12(a)(8) and (10) and 
(c)(1), (4), (7), and (16).
---------------------------------------------------------------------------

    USCIS continued to have to rely on the fee schedule established in 
the 2016 Fee Rule, which did not fully account for costs associated 
with adjudicating benefit requests. This unsustainable fiscal situation 
resulted in the inability to fund sufficient new officer positions to 
handle the agency's adjudication workload.\94\ This meant, in part, 
that USCIS was already in a precarious financial position with regard 
to staffing when the COVID-19 pandemic began. The litigation enjoining 
the implementation of the 2020 Fee Rule is an example of an external 
event that negatively impacted renewal EAD application processing 
times.\95\
---------------------------------------------------------------------------

    \94\ From FY 2015 through FY 2020, USCIS received a range of 
approximately 2.0 to 2.3 million Form I-765 filings (seeking both 
initial EADs and renewal of initial EADs) each fiscal year. In FY 
2021, this figure increased to approximately 2.6 million. This 
increase in Form I-765 filings, which was largely observed in the 
volume of renewal EAD applications sought in categories eligible for 
automatic extension of EADs, contributed to increased renewal EAD 
application processing times.
    \95\ On January 31, 2024, DHS promulgated a new Fee Rule, which 
became effective April 1, 2024. See 89 FR 6194 (Jan. 31, 2024).

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[[Page 101217]]

2. Public Health Emergency Caused by the COVID-19 Pandemic
    On January 31, 2020, the Secretary of Health and Human Services 
(HHS) declared a public health emergency under section 319 of the 
Public Health Service Act (42 U.S.C. 247d), in response to COVID-
19.\96\ On February 24, 2021, the President issued a continuation of 
the national emergency concerning the COVID-19 pandemic.\97\ Effective 
October 15, 2021, HHS renewed the public health emergency 
determination.\98\ On January 14, 2022, as a result of the continued 
impact of the COVID-19 pandemic, HHS again renewed the determination 
that a public health emergency exists.\99\
---------------------------------------------------------------------------

    \96\ See HHS, Determination that a Public Health Emergency 
Exists (Jan. 31, 2020), https://aspr.hhs.gov/legal/PHE/Pages/2019-nCoV.aspx (last visited Aug. 19, 2024).
    \97\ Notice on the Continuation of the National Emergency 
Concerning the Coronavirus Disease 2019 (COVID-19) Pandemic, 86 FR 
11599 (Feb. 26, 2021); Proclamation 9994 of March 13, 2020, 
Declaring a National Emergency Concerning the Coronavirus Disease 
(COVID-19) Outbreak, 85 FR 15337 (Mar. 18, 2020).
    \98\ HHS, Renewal of Determination that a Public Health 
Emergency Exists (Oct. 15, 2021), https://aspr.hhs.gov/legal/PHE/Pages/COVID-15Oct21.aspx (last visited Aug. 23, 2024).
    \99\ See HHS, Office of the Assistant Secretary for Preparedness 
and Response, Renewal of Determination that a Public Health 
Emergency Exists (Jan. 14, 2022), https://aspr.hhs.gov/legal/PHE/Pages/COVID19-14Jan2022.aspx (last visited Aug. 19, 2024).
---------------------------------------------------------------------------

    As noted above, USCIS was already in a precarious financial 
situation in 2019. This was exacerbated by a significant drop in 
receipts across many of the most common benefit types at the beginning 
of the COVID-19 pandemic in spring 2020.\100\ The significant drop in 
revenue early in the pandemic led USCIS to plan for a sweeping furlough 
of approximately 70 percent of its workforce to avoid financial 
collapse, including furloughing immigration services officers who 
adjudicate Form I-765.\101\ In an attempt to avoid these furlough 
measures, USCIS took steps to preserve sufficient funds to meet payroll 
and carryover obligations. These measures included substantial cuts for 
supplies, facilities, overtime, and contractor support services, as 
well as an agency-wide hiring freeze lasting from May 1, 2020, through 
March 31, 2021. The loss of overtime funds hindered USCIS' ability to 
address and mitigate backlogs with existing staff, which has been a 
strategy used successfully in the past to ensure processing times 
remain within goals.\102\ This option was not available in 2020, due to 
USCIS' worsening fiscal situation beginning in late 2019 and continuing 
into 2020 and part of 2021.
---------------------------------------------------------------------------

    \100\ See 2020 USCIS Statistical Annual Report, p. 4: ``[During 
the onset of the COVID-19 pandemic], incoming receipts were 32 
percent lower compared to the same time period in FY 2019. By the 
end of FY 2020, USCIS received about 5% fewer receipts than in FY 
2019. Although receipts decreased in some of the most frequently 
submitted form types, others such as the N-400 (Application for 
Naturalization) and I-129 (Petition for Nonimmigrant Worker) 
increased slightly from FY 2019.'' In addition to the lowest number 
of receipts in the past 5 years, USCIS also completed the lowest 
number of benefit requests in the past 5 years. The worst rates of 
completion were observed during the beginning of the pandemic when 
USCIS field offices and ASCs were closed to the public. While USCIS 
attempted to recover by shifting adjudications to form types not 
requiring in-person appearances, USCIS still completed fewer benefit 
requests than it received in FY 2020. See 2020 USCIS Statistical 
Annual Report, p. 4.
    \101\ During this time period, USCIS had an estimated $1.2 
billion budget shortfall.
    \102\ For example, in FY 2019, USCIS used $5.52 million of 
overtime funds for assigned staff to conduct credible and reasonable 
fear interviews, as well as Migrant Protection Protocols (MPP) non-
refoulement interviews.
---------------------------------------------------------------------------

    These fiscal issues had a direct impact on staffing, and 
insufficient staffing levels directly impacted the processing times for 
Form I-765. In addition to a direct shortage of staff due to hiring 
freezes, USCIS experienced an increase in attrition following 
announcement of a potential furlough that could have impacted nearly 70 
percent of employees.\103\ The hiring freeze also meant that the 
higher-than-normal number of vacancies could not be filled. 
Additionally, several initiatives took staff away from their normal 
duties such as efforts relating to unaccompanied children and 
processing petitions and applications by or on behalf of Afghan 
evacuees. The loss of contractor support services also hindered USCIS' 
ability to intake filings efficiently and prepare cases for 
adjudication by officers.
---------------------------------------------------------------------------

    \103\ See DHS, USCIS, News Release, Deputy Director for Policy 
Statement of USCIS' Fiscal Outlook (June 25, 2020), https://www.uscis.gov/news/news-releases/deputy-director-for-policy-statement-on-uscis-fiscal-outlook.
---------------------------------------------------------------------------

    All these factors contributed to a decrease in Form I-765 
completions. For example, in FY 2019, the Service Center Operations 
Directorate (SCOPS) allocated 343,399 officer hours to its Form I-765 
workload \104\ and completed 1,443,235 adjudications. By comparison, in 
FY 2020, SCOPS allocated 327,947 (or approximately 4.5 percent fewer) 
officer hours to the same workload and subsequently was only able to 
complete 1,379,745 (or approximately 4.4 percent fewer) adjudications. 
These reductions were partly attributable to the overall decrease in 
staff. At the start of FY 2020, SCOPS had 5,102 employees. This 
diminished to 4,886 at the start of FY 2021 and 4,731 at the start of 
FY 2022 as the effects of attrition and the hiring freeze continued. 
This overall decrease of approximately 7.3 percent did not include the 
additional loss of I-765 adjudication hours that stemmed from SCOPS 
supporting several programs requesting detailees.\105\ The number of 
detailees temporarily missing from the SCOPS workforce was not static 
but exceeded 200 employees at points during FY 2021, leaving SCOPS 
staffed at levels less than 89 percent of what existed going into FY 
2020. This data does not include contractor hours, which also were 
severely impacted by USCIS' fiscal situation as USCIS was forced to 
reduce the number of contractors available to assist with case 
processing.
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    \104\ Form I-765 workload includes requests for initial, 
renewal, and replacement employment authorization and/or EADs.
    \105\ A detailee is an employee who is temporarily detailed, 
i.e., temporarily assigned, to a different position for a specified 
period, with the employee returning to his or her regular duties at 
the end of the detail.
---------------------------------------------------------------------------

    USCIS was also unable to surge additional resources to increase 
officer hours adjudicating Form I-765 applications because of USCIS' 
limited resources and the need to manage other competing priorities in 
FY 2021. For example, USCIS surged officers to adjudicate employment-
based Form I-485 applications to minimize the number of employment-
based immigrant visas that would go unused at the end of FY 2021, after 
an extraordinary number of such unused family-preference visa numbers 
from FY 2020 ``fell across'' to the employment-based visa allocation 
for FY 2021,\106\ due primarily to Department of State consular 
closures caused by the COVID-19 pandemic.
---------------------------------------------------------------------------

    \106\ See generally INA secs. 201(d)(2)(C), 8 U.S.C. 
1151(d)(2)(C),

[[Page 101218]]



Table 1--Impact of Steadily Decreasing Staffing Levels on SCOPS' Form I-
           765 Completions (Initial and Renewal Applications)
------------------------------------------------------------------------
      Fiscal year       Officer hours allocated   Form I-765 completions
------------------------------------------------------------------------
2019..................  343,399................  1,443,235.
2020..................  327,947 (approximately   1,379,745
                         4.5 percent fewer than   (approximately 4.4
                         2019).                   percent fewer than
                                                  2019).
2021..................  314,924 (approximately   1,249,548
                         8.3 percent fewer than   (approximately 13.4
                         2019 and 4.0 percent     percent fewer than
                         fewer than 2020).        2019 and 9.4 percent
                                                  fewer than 2020).
------------------------------------------------------------------------
Note: This data does not include contractor hours, which also were
  severely impacted by USCIS' fiscal situation as USCIS was forced to
  reduce the number of contractors available to assist with case
  processing. At the time of the 2022 TFR, SCOPS' contractor staff had
  been reduced by approximately 8.2% since October 1, 2020.

    The Field Office Directorate's National Benefit Center (NBC), which 
also adjudicates a number of Form I-765 applications \107\ observed a 
similar reduction in staff and completions.
---------------------------------------------------------------------------

    \107\ Such as initial and renewal Forms I-765 filed under 8 CFR 
274a.12(c)(9) and (10), which experienced a dramatic growth in 
processing times in 2021, as detailed in this rule.

 Table 2--Impact of Steadily Decreasing Staffing Levels on NBC's Form I-
           765 Completions (Initial and Renewal Applications)
------------------------------------------------------------------------
      Fiscal year       Officer hours allocated   Form I-765 completions
------------------------------------------------------------------------
2019..................  115,510................  612,464.
2020..................  112,266 (approximately   605,105 (approximately
                         2.8 percent fewer than   1.2 percent fewer than
                         2019).                   2019).
2021..................  102,099 (approximately   509,973 (approximately
                         11.6 percent fewer       16.7 percent fewer
                         than 2019 and 9.1        than 2019 and 15.7
                         percent fewer than       percent fewer than
                         2020).                   2020).
------------------------------------------------------------------------
Note: This data does not include contractor hours, which also were
  severely impacted by USCIS' fiscal situation as USCIS was forced to
  reduce the number of contractors available to assist with case
  processing.

    Although the United States is no longer in a pandemic-related 
health emergency, this is an example of an unanticipated circumstance 
that adversely impacted USCIS renewal EAD processing times and was a 
significant factor in the decision to issue the 2022 TFR.
3. Unprecedented Increase in EAD Application Filings
    An additional contributing factor to the severe backlog and 
increased processing times for Forms I-765 was a substantial and 
unprecedented 2-month increase of renewal EAD applications in March and 
April 2021, and a sustained increase in filings thereafter. In calendar 
year (CY) 2019, the average number of monthly renewal applications 
filed for the C08, C09, and C10 categories combined was 46,715. In CY 
2020, the average number of monthly renewal applications filed for 
these three categories was 43,232. In March 2021, the renewal receipt 
numbers for these three categories spiked 56 percent over the previous 
month and 76.4 percent over the monthly average total for 2020. In 
April 2021, the renewal receipt numbers for these three categories 
remained elevated such that they were 25.6 percent higher than February 
2021, and 53.6 percent over the monthly average total for 2020. The 
increase in renewal EAD applications was unexpected based on historical 
filing patterns.\108\
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    \108\ This increase in Form I-765 filings may have been driven 
primarily by litigation and the ``frontlog'' of applications at the 
three USCIS lockbox facilities, which receive and process 
applications and payments in Chicago, Illinois; Phoenix, Arizona; 
and Lewisville, Texas. On July 20, 2020, Casa de Maryland, Inc. 
filed suit against then-Acting DHS Secretary Chad Wolf and DHS to 
enjoin changes to EAD rules for asylum seekers. On September 11, 
2021, the U.S. District Court of Maryland issued a preliminary 
injunction of the new EAD rules. See Casa de Maryland v. Wolf, 486 
F.Supp.3d 928 (D. Md. Sept. 11, 2020). Consequently, approximately 
23,000 applications pending at the USCIS lockbox were rejected in 
late October 2020 for a failure to pay the required biometrics fee 
or a failure to provide proof that the applicant was a member of the 
litigation class. These applications were refiled and, coupled with 
the prioritization of initial Form I-765 applications under category 
C08 due to the litigation, led to a redirection of resources away 
from renewal EAD applications. In addition, as noted above, the 
lockbox was experiencing a ``frontlog'' of applications, which led 
to a processing delay.

                                  Table 3--Surge in Renewal Form I-765 Filings
----------------------------------------------------------------------------------------------------------------
                      Month                        C08 category    C09 category    C10 category        Total
----------------------------------------------------------------------------------------------------------------
February 2021...................................          30,857          14,661           8,367          53,885
March 2021......................................          52,007          19,589          10,840          82,436
April 2021......................................          42,101          15,189           9,134          66,424
----------------------------------------------------------------------------------------------------------------

    In the eight months following April 2021, the receipt numbers for 
these categories fell to an average of 52,400 receipts per month but 
was still 21 percent above the average monthly total for CY 2020. The 
increase in the number and processing time of asylum and adjustment of 
status applications, which are the two most populous EAD filing 
categories eligible for the automatic extension under 8 CFR 
274a.13(d)(1), may have led to this sustained increase in applications 
for initial and renewal employment authorization (in the C08 and C09 
categories, respectively), which further compounded the Form I-765 
adjudication backlog.
    Specifically, in the years leading up to FY 2022, asylum 
application receipts outpaced available resources, leading to an 
increase in pending asylum cases, both in affirmative and defensive 
filings,

[[Page 101219]]

as shown in Table 4.\109\ The increase in pending asylum cases 
contributed to the increase in C08 renewal filings in FY 2021, which 
further impacted the renewal EAD application backlog.
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    \109\ See Background, p. 2, in Backlog Reduction of Pending 
Affirmative Asylum Cases: Fiscal Year 2021 Report to Congress (Oct. 
20, 2021), https://www.dhs.gov/sites/default/files/2021-12/USCIS%20-%20Backlog%20Reduction%20of%20Pending%20Affirmative%20Asylum%20Cases.pdf (last visited Aug.19, 2024) (``The affirmative asylum backlog is 
the result of a prolonged, significant increase in affirmative 
asylum application filings and credible fear screenings, which are 
processed by the U.S. Citizenship and Immigration Services (USCIS) 
asylum offices. Between FY 2013 and FY 2017, despite significant 
staffing increases, receipt growth in asylum office workloads 
outpaced the expansion of asylum office staffing and the 
establishment of new or expanded facilities needed to support 
additional staffing growth.'').
    \110\ See Executive Office of Immigration Review Adjudication 
Statistics, Total Asylum Applications (Jan 19, 2022), https://www.justice.gov/eoir/page/file/1106366/download (last visited 
Aug.19, 2024).
    \111\ Data reflects affirmatively filed Form I-589 asylum 
applications and do not include defensive asylum claims before a DOJ 
EOIR immigration court. See USCIS, Number of Service Wide Forms, 
October 1, 2021-December 31, 2021(last updated Feb. 2022), https://www.uscis.gov/sites/default/files/document/reports/Quarterly_All_Forms_FY2022_Q1.pdf (last visited Aug. 19, 2024).

                                       Table 4--Total Asylum Cases Pending
----------------------------------------------------------------------------------------------------------------
                                                                     DOJ \110\      USCIS \111\        Total
----------------------------------------------------------------------------------------------------------------
Total Asylum Cases Pending in:
    FY 2017 (Sep 2017)..........................................         377,140         289,835         666,975
    FY 2018 (Sep 2018)..........................................         473,510         319,202         792,712
    FY 2019 (Sep 2019)..........................................         608,976         339,836         948,812
    FY 2020 (Sep 2020)..........................................         647,923         386,014       1,033,937
    FY 2022 (Dec 2021)..........................................         628,551         432,341       1,060,892
----------------------------------------------------------------------------------------------------------------

    In addition, the number of employment-based adjustment of status 
applications increased significantly in FY 2021 due to the number of 
employment-based visas that became available as a result of unusually 
low visa usage in other categories in FY 2020 due to the COVID-19 
pandemic. At the start of FY 2021, there were approximately 126,000 
employment-based adjustment of status applications pending with USCIS. 
Approximately 313,000 employment-based adjustment of status 
applications were received during FY 2021, which likely contributed to 
the increase in C09 initial filings in FY 2021, further taxing USCIS' 
resources to timely process renewal applications. USCIS also saw 
significant increases in filings across other benefit request types 
during CY 2021.\112\
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    \112\ For example, USCIS also encountered large increases of 
filings of Form I-131, Application for Travel Document, possibly 
related to the increase in filings of Form I-485, Application to 
Register Permanent Residence. From CY 2020 to CY 2021, USCIS 
observed an overall 25.8 percent increase in receipts across form 
types. Although this represents a substantial increase, there was a 
29 percent increase in renewal EAD applications in the automatic 
extension categories.
---------------------------------------------------------------------------

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

                  Table 5A--Initial Form I-765 Filings
------------------------------------------------------------------------
                              Form  I-
       Calendar year            765            Surge or difference
                              filings
------------------------------------------------------------------------
2019.......................  1,090,000
2020.......................  1,050,000  4 percent lower than 2019.
2021.......................  1,290,000  18 percent higher than 2019.
                                        23 percent higher than 2020.
------------------------------------------------------------------------


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

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

B. Circumstances Resulting in the 2024 Temporary Final Rule

1. Overview
    On April 8, 2024, DHS published the 2024 TFR that, for certain 
renewal EAD applications filed during a limited period that ends on 
September 30, 2025, again temporarily increased the automatic extension 
period from up to 180 days to up to 540 days.\113\ The multiple 
circumstances that resulted in the 2024 TFR are summarized in the 
following sections. These examples illustrate the unpredictable events 
that arise from time to time and render the 180-day automatic extension 
period insufficient to protect renewal applicants and their employers 
from the harms resulting from a lapse in employment authorization and/
or documentation.
---------------------------------------------------------------------------

    \113\ See 89 FR 24628 (Apr. 8, 2024). The 2024 TFR also 
increased the automatic extension period from up to 180 days to up 
to 540 days for applicants who properly filed their EAD renewals on 
or after October 27, 2023.

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

[[Page 101220]]

2. Surge in Initial EAD Application Filings by Pending Asylum 
Applicants
    In FY 2023, USCIS experienced a surge in EAD applications primarily 
\114\ driven by initial EAD applications by individuals with pending 
asylum applications (C08).\115\ The increase in initial C08 EAD 
applications placed a substantial strain on USCIS resources due to the 
high volume of cases.
---------------------------------------------------------------------------

    \114\ Other factors related to EAD processing affected USCIS' 
workload and personnel, such as processing EADs for noncitizens who 
were paroled after scheduling an appointment through CBP One or 
through the Cuban, Haitian, Nicaraguan, and Venezuelan parole 
processes. However, these processes did not significantly compound 
the pressures on EAD renewal processing.
    \115\ Pending asylum applicants may not be granted employment 
authorization until 180 days after the filing of the application for 
asylum. INA sec. 208(d)(2), 8 U.S.C. 1158(d)(2). These initial C08 
applicants may file their EAD applications once the asylum 
application has been pending for 150 days. 8 CFR 208.7(a)(1).
---------------------------------------------------------------------------

    In addition to increased EAD filings, processing of C08 EAD 
applications was also affected by litigation regarding two rules, 
published in 2020, that amended the regulations governing EAD 
applications associated with asylum applications.
    The regulation at 8 CFR 208.7(a)(1), which was originally 
promulgated in 1994,\116\ requires USCIS to adjudicate initial C08 EAD 
applications within 30 days of filing.\117\ However, on June 22, 2020, 
DHS published a final rule titled ``Removal of 30-day Processing 
Provision for Asylum Applicant-Related Form I-765 Employment 
Authorization Applications'' (the Timeline Repeal Rule), which amended 
8 CFR 208.7(a)(1) to remove the 30-day processing requirement.\118\ DHS 
subsequently published another final rule titled ``Asylum Application, 
Interview, and Employment Authorization for Applicants'' (the Broader 
Asylum EAD Rule), which made further changes to DHS's regulations 
governing eligibility for employment authorization based on a pending 
asylum application, including extending the time period required for 
asylum applicants to apply for an EAD from 180 days to 365 days (not 
including delays caused or requested by an applicant) and imposing 
other restrictions and requirements.\119\
---------------------------------------------------------------------------

    \116\ See 59 FR 62284, 62289 (Dec. 5, 1994).
    \117\ On July 26, 2018, in Rosario v. USCIS, the U.S. District 
Court for the Western District of Washington granted summary 
judgment against the government and issued an order requiring USCIS 
to comply with the 30-day regulatory timeline at 8 CFR 208.7. See 
365 F. Supp. 3d 1156 (W.D. Wash. 2018).
    \118\ See 85 FR 37502 (June 22, 2020).
    \119\ See 85 FR 38532 (June 26, 2020).
---------------------------------------------------------------------------

    Litigation followed the publication of these two rules (``2020 
Asylum EAD Rules''), including CASA \120\ in the U.S. District Court 
for the District of Maryland, and Asylumworks \121\ in the U.S. 
District Court for the District of Columbia. On September 11, 2020, the 
court in CASA imposed a preliminary injunction requiring that USCIS not 
apply the 2020 Asylum EAD Rules to members of CASA and Asylum Seeker 
Advocacy Project organizations. On February 7, 2022, the U.S. District 
Court for the District of Columbia issued an order in Asylumworks 
vacating the 2020 Asylum EAD Rules in their entirety.\122\ On September 
22, 2022, DHS published a final rule titled ``Asylum Application, and 
Employment Authorization for Applicants; Implementation of Vacatur'' 
\123\ that removed the changes made by the 2020 Asylum EAD Rules, 
restoring the regulatory text that predated the 2020 Asylum EAD Rules 
and thus implementing the court order in Asylumworks.
---------------------------------------------------------------------------

    \120\ See CASA de Maryland, Inc. v. Wolf, 486 F. Supp. 3d 928 
(D. Md. 2020).
    \121\ Asylumworks v. Mayorkas, 590 F. Supp. 3d 11 (D.D.C. Feb. 
7, 2022).
    \122\ See Asylumworks v. Mayorkas, 590 F. Supp. 3d 11 (D.D.C. 
Feb. 7, 2022) (``Asylumworks vacatur''). The vacatur decision in 
Asylumworks effectively mooted the CASA case. The CASA court 
acknowledged the case had become moot on May 18, 2023, when it 
granted the government's motion to dismiss. See CASA de Maryland, 
Inc. v. Mayorkas, No. 8:20-CV-2118-PX, 2023 WL 3547497 (D. Md. May 
18, 2023).
    \123\ See 87 FR 57795 (Sept. 22, 2022).
---------------------------------------------------------------------------

    As a result of the Asylumworks court order, since February 7, 2022, 
USCIS has been required to process initial EAD applications for all 
asylum applicants within 30 days of filing for their EAD. While the 
court ordered a return to a regulatory requirement that had existed 
until 2020, the burden created by the court's order was significant and 
impacted overall EAD processing due to the surge in C08 EAD 
applications.
    Following the Asylumworks vacatur, at the end of February 2022, 
there were 93,639 pending cases to which the 30-day timeframe 
processing requirement applied. To address the backlog of cases and 
comply with the court's order, USCIS worked to increase resources for 
the entire initial C08 EAD application workload, including adding staff 
(pulling from other workloads as well as new hires) and offering 
overtime.\124\
---------------------------------------------------------------------------

    \124\ Receipts of initial C08 EAD applications for the first 
half of FY 2022 averaged 16,900 per month, and for the second half 
of FY 2022, 27,500 receipts per month. Average monthly receipts of 
initial C08 EAD applications for the first half of FY 2023 was 
55,000, and it increased to 78,700 in the second half of FY 2023.
---------------------------------------------------------------------------

3. Significant Increase in Referrals to USCIS for Credible Fear 
Assessments
    For the period leading up to the 2024 TFR, economic and political 
instability around the world has been fueling high levels of global 
migration, including in the Western Hemisphere.\125\ For example, in 
December 2022, U.S. Border Patrol (USBP) \126\ encountered 
approximately 222,000 noncitizens between ports of entry, then second 
only to May 2022 (approximately 224,000 encounters). DHS announced 
sweeping new measures to address the anticipated further increase in 
migration, including a new rule that introduced a rebuttable 
presumption of asylum ineligibility for certain noncitizens \127\ and a 
surge in resources to expeditiously process and remove individuals who 
arrive at the southwest border without a lawful basis to remain.\128\ 
The number of encounters was highly variable. For example, July 2023 
saw 132,642 encounters while December 2023 saw 249,735 encounters, 
before falling again in January 2024 (176,205).\129\ With this overall 
increase in encounters at the southwest border, there was also an 
increase in referrals to USCIS for credible fear screenings \130\ of

[[Page 101221]]

individuals who express an intention to apply for asylum or who express 
a fear of persecution, torture, or returning to their home country. In 
FY 2023, USCIS received a historic high of 149,700 credible fear 
referrals.\131\ Following implementation of a Presidential Proclamation 
and related interim final rule in June 2024, crossings between ports of 
entry fell by over 55 percent.\132\
---------------------------------------------------------------------------

    \125\ See 88 FR 31314, 31315 (May 16, 2023) (discussing the 
reasons for the highest levels of global migration since World War 
II).
    \126\ USBP is the component of U.S. Customs and Border 
Protection (CBP) within DHS responsible for U.S. border security 
between ports of entry. USBP's mission is to detect and prevent the 
illegal entry of individuals into the United States. See DHS, CBP, 
Along the U.S. Borders (last modified Sept. 6, 2024), https://www.cbp.gov/border-security/along-us-borders (last visited Oct. 23, 
2024).
    \127\ See 88 FR 31314, 31314 (May 16, 2023).
    \128\ See DHS, Fact Sheet: U.S. Government Announces Sweeping 
New Actions to Manage Regional Migration (Apr. 27, 2023), https://www.dhs.gov/news/2023/04/27/fact-sheet-us-government-announces-sweeping-new-actions-manage-regional-migration (last visited Oct. 
23, 2024).
    \129\ See DHS, CBP, Southwest Land Border Encounters (last 
modified Oct. 22, 2024), https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters (last visited Oct. 23, 2024).
    \130\ Under the INA, certain noncitizens arriving in the United 
States who are found to be inadmissible under either section 
212(a)(6)(C) of the INA, 8 U.S.C. 1182(a)(6)(C) (misrepresentation) 
or section 212(a)(7) of the INA, 8 U.S.C. 1182(a)(7) (for failure to 
meet documentation requirements for admission), may be removed from 
the United States without a further hearing or review (expedited 
removal) unless the noncitizen indicates either an intention to 
apply for asylum under section 208 of the INA, 8 U.S.C. 1158, or 
expresses a fear of persecution or torture. See INA sec. 
235(b)(1)(A)(i), (iii), 8 U.S.C. 1225(b)(1)(A)(i), (iii); 8 CFR 
235.3(b)(4). If such a noncitizen indicates an intention to apply 
for asylum or expresses a fear of persecution, torture, or of 
returning to their home country, the immigration officer refers the 
noncitizen for an interview with a USCIS asylum officer, who will 
determine if the noncitizen has a credible fear of persecution in 
his or her country of nationality or last habitual residence. See 
INA sec. 235(b)(1)(A), 8 U.S.C. 1225(b)(1)(A). If the USCIS asylum 
officer determines the noncitizen has a credible fear of persecution 
or torture, the noncitizen may apply for asylum and remain in the 
United States until a final determination is made on the asylum 
application by an immigration judge or, in some cases, by an asylum 
officer. See generally INA sec. 235(b), 240, 8 U.S.C. 1225(b), 
1229a; see also 8 CFR 208.2, 208.30 and 1208.30. The HSA grants to 
DHS the authority to adjudicate affirmative asylum applications--
i.e., applications for asylum filed with DHS for individuals not in 
removal proceedings--and authority to conduct credible fear 
interviews, make credible fear determinations in the context of 
expedited removal, and establish procedures for further 
consideration of asylum applications after an individual is found to 
have a credible fear. See 6 U.S.C. 271(b)(3); INA sec. 235(b)(1)(B), 
8 U.S.C. 1225(b)(1)(B).
    \131\ See DHS, USCIS, Asylum Division Monthly Statistics Report, 
Fiscal year 2023, October 2022 to September 2023, https://www.uscis.gov/sites/default/files/document/data/asylumfiscalyear2023todatestats_230930.xlsx (last visited Oct. 23, 
2024).
    \132\ See DHS, Fact Sheet: Joint DHS-DOJ Final Rule Issued to 
Restrict Asylum Eligibility for Those Who Enter During High 
Encounters at the Southern Border (Sept. 30, 2024), https://www.dhs.gov/news/2024/09/30/fact-sheet-joint-dhs-doj-final-rule-issued-restrict-asylum-eligibility-those-who (last visited Oct. 23, 
2024).
---------------------------------------------------------------------------

    The Directorate at USCIS that processes these claims, the Refugee, 
Asylum and International Operations Directorate (``RAIO''), had 
insufficient staff to accommodate such increased volume. To address the 
impact of these high numbers of credible fear referrals from the 
southwest border on existing asylum and credible fear procedures, USCIS 
detailed USCIS personnel, including officers who adjudicate EAD 
applications, to the USCIS RAIO directorate for up to 120 days to 
conduct credible fear screenings.\133\ However, because only an 
immigration officer who is also an ``asylum officer,'' as defined at 
section 235(b)(1)(E) of the Act, 8 U.S.C. 1225(b)(1)(E), may conduct 
credible fear screenings, USCIS had to ensure that any non-asylum 
officers received the necessary asylum officer training before they 
could begin the detail.\134\ Thus, many USCIS detailees were required 
to take a full-time asylum officer training course lasting several 
weeks in addition to the 120 day detail period. Diverting adjudicatory 
resources by training and detailing adjudicators to conduct credible 
fear screenings significantly strained operational resources for 
renewal EAD adjudications, resulting in increased processing 
times.\135\
---------------------------------------------------------------------------

    \133\ See DHS, Fact Sheet: U.S. Government Announces Sweeping 
New Actions to Manage Regional Migration (Apr. 27, 2023), https://www.dhs.gov/news/2023/04/27/fact-sheet-us-government-announces-sweeping-new-actions-manage-regional-migration (last visited Oct. 
23, 2024) (``DHS and the Department of Justice (DOJ) are also 
surging asylum officers and immigration judges, respectively, to 
complete immigration proceedings at the border more quickly.''). 
Approximately 157 immigration officer FTEs participated in a 
credible fear detail in FY 2023, and approximately 212 FTEs 
participated from May 2023 to January 2024.
    \134\ See INA sec. 235(b)(1)(B)(i) and (b)(1)(e), 8 U.S.C. 
1225(b)(1)(B)(i) and (b)(1)(e); 8 CFR 208.1(b). As required by law, 
asylum officers receive special training, including training on 
international human rights law, non-adversarial interview 
techniques, and country conditions information.
    \135\ On October 20, 2023, the Administration requested $755 
million in supplemental funding from Congress for USCIS to hire 
additional officers to adjudicate an increase in asylum filings and 
address the backlog in processing employment authorization 
applications and immigration benefit requests. See White House, 
Office of Management and Budget, Letter regarding critical national 
security funding needs for FY 2024, https://www.whitehouse.gov/wp-content/uploads/2023/10/Letter-regarding-critical-national-security-funding-needs-for-FY-2024.pdf (last visited Oct. 23, 2024).
---------------------------------------------------------------------------

    Positive credible fear determinations also created a downstream 
increase in applications for employment authorization, as these 
individuals may apply for asylum before the Executive Office for 
Immigration Review, which renders them eligible to apply for employment 
authorization after their asylum application has been pending for 150 
days.
4. Impact of Asylum Filing Surges and Backlogs on C08 Renewals
    USCIS received historic levels of affirmative asylum applications 
in FY 2022 and FY 2023. In FY 2022, USCIS received more than 240,600 
affirmative asylum applications.\136\ In FY 2023, USCIS received more 
than 454,300 affirmative asylum applications.\137\ Despite efforts to 
adjudicate these pending applications, backlogs for both affirmative 
(filed with USCIS) and defensive (filed with the Executive Office for 
Immigration Review (EOIR)) asylum applications have grown. 
Specifically, as of September 30, 2023, over 1.062 million affirmative 
asylum applications were pending with USCIS and 937,000 total asylum 
applications were pending before EOIR, respectively. Owing to these 
backlogs, USCIS has seen an increase in C08 renewal EAD applications. 
Because initial C08 EADs issued prior to September 2023 were valid for 
a period of 2 years, the backlogs in asylum applications at USCIS and 
EOIR were projected to result in over 770,000 C08 renewal EAD 
application filings during the effective period of the 2024 TFR.\138\
---------------------------------------------------------------------------

    \136\ See DHS, USCIS, Asylum Division Monthly Statistics Report. 
Fiscal Year 2022. October 2021 to September 2022, https://www.uscis.gov/sites/default/files/document/data/AsylumFiscalYear2022ToDateStats.xlsx (last visited Oct. 23, 2024).
    \137\ See DHS, USCIS, Asylum Division Monthly Statistics Report. 
Fiscal Year 2023. October 2022 to September 2023, https://www.uscis.gov/sites/default/files/document/data/asylumfiscalyear2023todatestats_230930.xlsx (last visited Oct. 23, 
2024).
    \138\ See TFR Modeling Methodology.
---------------------------------------------------------------------------

5. Additional Designations for Temporary Protected Status
    Over the course of FY 2022 and FY 2023, the Secretary of Homeland 
Security, following consideration of relevant country conditions and 
other appropriate factors and in consultation with interagency 
partners, designated, redesignated, and extended the designation of 
several countries for TPS under section 244 of the INA, 8 U.S.C. 1254a. 
There are currently 16 countries with active TPS designations.\139\ TPS 
provides temporary protection from removal and employment authorization 
to eligible nationals of designated countries present in the United 
States.\140\ The Secretary may designate a country for TPS if the 
conditions in a country meet certain statutory criteria, including 
preventing the country's nationals from returning safely due to ongoing 
armed conflict or extraordinary and temporary conditions or rendering 
the country temporarily unable to handle adequately the return of its 
nationals due to an environmental disaster that has resulted in a 
substantial but temporary disruption in living conditions.\141\ USCIS 
is the designated entity within DHS to administer the TPS program.\142\
---------------------------------------------------------------------------

    \139\ For a list of designated countries, see DHS, USCIS, 
Temporary Protected Status (last reviewed/updated Oct. 17, 2024),
    https://www.uscis.gov/humanitarian/temporary-protected-status 
(last visited Oct. 23, 2024).
    \140\ See INA secs. 244(a)(1); 8 U.S.C. 1254a(1).
    \141\ See INA secs. 244(b)(1)(A)-(C); 8 U.S.C. 1254a(b)(1)(A)-
(C).
    \142\ See 6 U.S.C. 275. See INA sec. 244(a); 8 U.S.C. 1254a(a).
    \143\ See INA sec. 244(a)(4), 8 U.S.C. 1254a(a)(4); 8 CFR 244.5, 
274a.12(c)(19).
---------------------------------------------------------------------------

    Once a country is designated, eligible nationals of that country 
may apply for TPS by filing Form I-821, Application for Temporary 
Protected Status (TPS application). Applicants may also request an EAD 
by filing an EAD application with their TPS application, while their 
TPS application is pending or after their TPS application is 
approved.\143\ TPS-based EADs fall under the A12 (TPS previously 
granted) and C19 (initial TPS application pending) categories. 
Individuals granted TPS must re-register for TPS and may apply to renew 
their EADs as part of any announced re-registration period if the 
country's TPS designation is extended

[[Page 101222]]

by the Secretary pursuant to statutory requirements.\144\
---------------------------------------------------------------------------

    \144\ See INA sec. 244(a)(1)(B), 8 U.S.C. 1254a(a)(1)(B); 8 CFR 
244.12, 274a.12(a)(12).
---------------------------------------------------------------------------

    Over the course of FY 2022 and FY 2023, the Secretary newly 
designated five countries for TPS--Afghanistan,\145\ Cameroon,\146\ 
Ethiopia,\147\ Sudan,\148\ and Ukraine.\149\ These initial designations 
allowed nationals of these countries who were already in the United 
States to apply for TPS and EADs. During this same period, the 
Secretary extended and redesignated for TPS Burma,\150\ Haiti,\151\ 
Syria,\152\ Somalia,\153\ South Sudan,\154\ and Yemen,\155\ which 
allowed existing TPS beneficiaries to re-register for TPS and apply for 
renewal of their EADs and allowed additional qualifying nationals who 
arrived in the United States after the prior designation to apply for 
TPS EADs. The Secretary also extended the TPS designation for El 
Salvador,\156\ Honduras,\157\ Nicaragua,\158\ Nepal,\159\ and 
Venezuela,\160\ thereby allowing existing TPS beneficiaries to re-
register for TPS and apply for renewal of their EADs.
---------------------------------------------------------------------------

    \145\ 87 FR 30976 (May 20, 2022).
    \146\ 87 FR 34706 (June 7, 2022).
    \147\ 87 FR 76074 (Dec. 12, 2022).
    \148\ 87 FR 23202 (Apr. 19, 2022).
    \149\ 87 FR 23211 (Apr. 19, 2022).
    \150\ 87 FR 58515 (Sept. 27, 2022).
    \151\ 88 FR 5022 (Jan. 26, 2023).
    \152\ 87 FR 46982 (Aug. 1, 2022).
    \153\ 88 FR 15434 (Mar. 13, 2023).
    \154\ 88 FR 60971 (Sept. 6, 2023).
    \155\ 88 FR 94 (Jan. 3, 2023).
    \156\ 88 FR 40282 (June 21, 2023).
    \157\ 88 FR 40304 (June 21, 2023).
    \158\ 88 FR 40294 (June 21, 2023).
    \159\ 88 FR 40317 (June 21, 2023).
    \160\ 87 FR 55024 (Sept. 8, 2022).
---------------------------------------------------------------------------

    These additional designations, extensions, and redesignations 
resulted in a significant increase in initial and renewal EAD filings. 
In FY 2021, USCIS received 148,898 EAD applications filed by TPS 
applicants. Of these, 24,172 were renewal EAD applications. In FY 2022, 
USCIS received 100,484 EAD applications filed by TPS applicants. Of 
these, 33,352 were renewal EAD applications. In FY 2023, USCIS received 
329,325 EAD applications filed by TPS applicants, which represent an 
over 200 percent increase in TPS-related EAD applications from FY 2022 
to FY 2023. Of these, 230,363 were renewal EAD applications as a result 
of the withdrawal of the TPS terminations and extensions of TPS in that 
fiscal year.\161\ As of January 2024, prior to publication of the 2024 
TFR, the Secretary had redesignated and extended TPS for Cameroon \162\ 
and Syria.\163\
---------------------------------------------------------------------------

    \161\ The 6 countries impacted by the withdrawal of TPS 
Terminations (El Salvador, Haiti, Honduras, Nepal, Sudan, Nicaragua) 
accounted for approximately 19,000 renewal EAD applications in 
FY2022 and 193,000 renewal applications in FY2023. Source: USCIS 
analysis 10/11/2024.
    \162\ 88 FR 69945 (Oct. 10, 2023).
    \163\ 89 FR 5562 (Jan 29, 2024).
    \164\ For the beginning of FY 2023 until March 2023, USCIS 
averaged 160,000 initial EAD application receipts per month. In 
March 2023, initial EAD application receipts spiked to over 250,000. 
For the remainder of FY 2023, USCIS averaged 220,000 initial EAD 
application receipts per month. The EAD category with the largest 
growth of initial receipts in the second half of FY 2023 was C08 
(pending asylum applications).
---------------------------------------------------------------------------

    The increased number of TPS-based EAD filings (particularly in 
renewal EAD applications in the A12 category) from FY 2022 to FY 2023 
further stretched limited USCIS resources and contributed to the longer 
processing times for renewal EAD applications overall.
6. Combined Impact on Renewal EAD Application Processing Times
    The events described in the previous sections resulted in a 
significant increase in USCIS processing times for several categories 
of automatic extension-eligible renewal EAD applications. For the 
period leading up to the 2024 TFR, the most significant contributing 
factor to these increased processing was the substantial surge in the 
number of initial EAD applications based on pending asylum applications 
(C08) that began in March 2023. This spike in filings, followed by a 
sustained increase in receipts during FY 2023,\164\ substantially 
increased processing times for renewal EAD applications because USCIS 
was required to prioritize adjudication of C08 initial EAD applications 
to comply with court-ordered deadlines for processing these case types 
and to address other priorities.
    As shown in Tables 6A. through C. below, in FY 2023, USCIS received 
approximately 3.49 million EAD applications, which was 50 percent 
higher than the volume received in FY 2022 (approximately 2.33 
million). USCIS received approximately 2.37 million initial EAD 
applications in FY 2023, which was 77 percent higher than the volume of 
initial EAD applications received in FY 2022 (approximately 1.34 
million). USCIS received approximately 1.12 million renewal EAD 
applications in FY 2023, which was 13 percent higher than the volume 
received in FY 2022 (approximately 990,000).

             Table 6A--Initial and Renewal EAD applications
------------------------------------------------------------------------
                                          EAD
            Fiscal year              applications        Difference
------------------------------------------------------------------------
2022...............................     2,330,000
2023...............................     3,490,000  50 percent higher
                                                    than 2022.
------------------------------------------------------------------------


                   Table 6B--Initial EAD applications
------------------------------------------------------------------------
                                          EAD
            Fiscal year              applications        Difference
------------------------------------------------------------------------
2022...............................     1,340,000
2023...............................     2,370,000  77 percent higher
                                                    than 2022.
------------------------------------------------------------------------


                   Table 6C--Renewal EAD applications
------------------------------------------------------------------------
                                          EAD
            Fiscal year              applications        Difference
------------------------------------------------------------------------
2022...............................       990,000
2023...............................     1,120,000  13 percent higher
                                                    than 2022.
------------------------------------------------------------------------

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

[[Page 101223]]

[GRAPHIC] [TIFF OMITTED] TR13DE24.072

    Consequently, the efforts USCIS undertook to improve its processing 
times for renewal EAD applications, including increasing its staffing 
levels, were insufficient to keep up with the substantial and 
unanticipated increase in EAD application filings.
    By February 2024, prior to the issuance of the 2024 TFR, the 80th 
percentile processing time \165\ for renewal C08 EAD applications was 
16 months, well beyond the targeted three-month processing time. By 
February 2024, USCIS was also behind in its adjudications of other 
automatic extension categories, including C09 (pending adjustment of 
status application, 7.5 months), C10 (pending application for 
suspension of deportation, 16.3 months), A12 (TPS, 11.2 months), A05 
(asylee, 4.8 months), and A10 (granted withholding of deportation or 
removal, 6.6 months).
---------------------------------------------------------------------------

    \165\ The processing times displayed on the USCIS website is the 
amount of time it took USCIS to complete 80 percent of adjudicated 
cases over the last 6 months. ``Processing time is defined as the 
number of days (or months) that have elapsed between the date USCIS 
received an application, petition, or request and the date USCIS 
completed the application, petition, or request (that is, approved 
or denied it) in a given six-month period.'' See DHS, USCIS, Case 
Processing Times, https://egov.uscis.gov/processing-times/more-info 
(last visited Oct. 23, 2024).
---------------------------------------------------------------------------

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

               Table 7--Pending EAD Applications by Month
------------------------------------------------------------------------
                                                             Automatic
                  Month                       All EAD        extension
                                           applications      renewals
------------------------------------------------------------------------
Sep 2023................................       1,490,000         534,000
Oct 2023................................       1,510,000         504,000
Nov 2023................................       1,500,000         474,000
Dec 2023................................       1,470,000         448,000
Jan 2024................................       1,440,000         457,000
Feb 2024................................       1,400,000         439,000
------------------------------------------------------------------------
Source: DHS, USCIS, Office of Performance and Quality (OPQ), CLAIMS3,
  ELIS, retrieved March 15, 2024.


[[Page 101224]]

    As of February 2024, USCIS had approximately 439,000 pending 
renewal EAD requests in the categories eligible for automatic 
extension,\166\ and received an average of approximately 52,800 
additional automatic extension-eligible renewal EAD applications per 
month in FY 2023.\167\ These additional renewal applications added to 
the backlog, given that USCIS completed approximately 49,100 automatic 
extension-eligible renewal EAD applications per month at that 
time.\168\
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    \166\ See Table 7 (Source: DHS, USCIS, OPQ, CLAIMS3, ELIS, 
retrieved March 15, 2024). The vast majority of these renewal 
applicants eligible for automatic extension fell into three filing 
categories: (1) noncitizens who have properly filed applications for 
asylum and withholding of deportation or removal (C08); (2) 
noncitizens who have filed applications for adjustment of status to 
lawful permanent resident under section 245 of the INA, 8 U.S.C. 
1255 (C09); and (3) noncitizens who have filed applications for 
suspension of deportation under section 244 of the INA (as it 
existed prior to April 1, 1997), cancellation of removal pursuant to 
section 240A of the INA, 8 U.S.C. 1229b, or special rule 
cancellation of removal under section 309(f)(1) of the Illegal 
Immigration Reform and Immigrant Responsibility Act of 1996 (C10). 
In FY 2023, these three filing categories made up nearly 61 percent 
of the renewal EAD receipts filed in categories eligible for the 
automatic extension of employment authorization. Broken down further 
among these three categories: the C08 category comprised 
approximately 41 percent of the renewal EAD receipts filed in 
categories eligible for the automatic extension, while the C09 
category comprised approximately 10 percent and the C10 comprised 
approximately 10 percent.
    \167\ In FY 2023, USCIS received a total of approximately 
633,000 renewal EAD applications in the categories eligible for 
automatic extension, which averages to approximately 52,800 filings 
per month.
    \168\ See 89 FR 24628, 24644 (Apr. 8, 2024).
---------------------------------------------------------------------------

    In FY 2023, the 80th percentile processing time for all renewal EAD 
applications was 14.2 months. For those automatic extension-eligible 
renewal applicants, as of February 2024, the 80th percentile processing 
time was 14.5 months.
    In summary, based on a combination of factors, DHS projected at the 
time that, between May 2024 to March 2026, approximately 800,000 
renewal applicants eligible for an automatic extension would exceed the 
180-day automatic extension period unless the 2024 TFR was issued.

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

    DHS is aware of the importance of employment authorization and EADs 
as evidence of employment eligibility for applicants' and their 
families' livelihoods, as well as their U.S. employers' continuity of 
operations and financial health. DHS is also aware of the potential 
detrimental impact that gaps in employment authorization may have on an 
applicant's eligibility for future immigration benefits, should the 
applicant engage in unauthorized employment during the gap,\169\ and on 
the U.S. employer's responsibilities under the INA. DHS also 
acknowledges that the factors that lead to substantial increases in 
backlogs and prolonged renewal EAD application processing times are not 
the fault of applicants but have had and may continue to have 
significant adverse consequences for applicants and employers awaiting 
a USCIS decision on pending renewal EAD applications. The public 
comments received in relation to the 2022 and 2024 TFRs underscore the 
importance of employment authorization and EADs.\170\
---------------------------------------------------------------------------

    \169\ With certain exceptions, if a noncitizen continues to 
engage in or accepts unauthorized employment, the individual may be 
barred from adjusting status to that of a lawful permanent resident 
under INA sec. 245. See INA sec. 245(c)(2) and (c)(8), 8 U.S.C. 
1255(c)(2) and (c)(8).
    \170\ See section IV. Discussion of Public Comments, in this 
preamble.
---------------------------------------------------------------------------

    As illustrated by the examples elsewhere in this preamble,\171\ a 
wide variety of often-unpredictable circumstances affecting USCIS 
operations have led to significant increases in USCIS processing times 
for several categories of renewal EAD applications. DHS has determined 
that if the automatic extension period is not permanently increased to 
540 days, many EAD renewal applicants could in the future be in danger 
of experiencing a gap in employment authorization and/or EAD validity. 
Without a permanent 540-day automatic extension period, one or more 
events in the future, such as a surge in EAD application filings, may 
result in hundreds of thousands of renewal EAD applications remaining 
pending beyond the 180-day automatic extension period, and renewal 
applicants may lose their employment authorization and/or EAD validity 
through no fault of their own. DHS has also determined that reacting to 
such circumstances by providing temporary extensions through the means 
of TFRs is neither an efficient solution nor is it sustainable for DHS, 
USCIS, applicants and employers as such rapid policymaking exercises 
occupy scarce government resources and do not provide long-term 
stability and predictability for applicants, employers' business 
operations, and the community as a whole.
---------------------------------------------------------------------------

    \171\ See sections III. A-C. in this preamble.
---------------------------------------------------------------------------

    As DHS has noted before in previous rulemakings, the loss of 
employment authorization for asylum applicants is especially dire 
because of the significant time that asylum applicants must wait to 
become employment-authorized in the first place.\172\ By statute, 
asylum applicants cannot be approved for initial EADs until their 
asylum applications have been pending for at least 180 days.\173\ This 
initial wait time exacerbates the often-precarious economic situations 
asylum seekers may be in as a result of fleeing persecution in their 
home countries.\174\ Many lacked substantial resources to support 
themselves before they fled or spent much of what they had to escape 
their country and travel to the United States.\175\ Those with 
resources may have been forced to leave what they had behind because 
they lacked the time to sell property or otherwise gather what they 
owned.\176\ When whole families are threatened, the primary earner may 
be the first to travel to the United States to establish a new home 
before bringing the rest of the family.\177\ The cost to travel to the 
United States is high, as is the relative cost of living.\178\ In these 
circumstances, if the asylum seeker is unable to work for extended 
periods of time, it can not only negatively impact that individual, but 
the whole family as well.\179\ For those who have already found jobs to 
support their needs, the potential for their initial EADs to expire 
prior to the approval and issuance of a renewed EAD may force them back 
into instability caused by a gap in their authorization to work.\180\
---------------------------------------------------------------------------

    \172\ See 87 FR 26614, 26619 (May 4, 2022) (explaining that a 
now-vacated regulation in effect from August 2020 through February 
2022 did not allow asylum applicants to apply for employment 
authorization until their asylum applications had been pending for 
at least 365 days, and, even absent that regulation, INA 208(d)(2), 
8 U.S.C. 1158(d)(2) does not allow their employment authorization 
applications to be approved until their asylum applications have 
been pending at least 180 days); 89 FR 24628, 24644 (Apr. 8, 2024) 
(same explanation).
    \173\ See INA sec. 208(d)(2), 8 U.S.C. 1158(d)(2).
    \174\ See 87 FR 26614, 26619 (May 4, 2022); 89 FR 24628, 24644 
(Apr. 8, 2024).
    \175\ See 87 FR 26614, 26619 (May 4, 2022); 89 FR 24628, 24644 
(Apr. 8, 2024).
    \176\ See 87 FR 26614, 26619 (May 4, 2022); 89 FR 24628, 24644 
(Apr. 8, 2024).
    \177\ See 87 FR 26614, 26619 (May 4, 2022); 89 FR 24628, 24644 
(Apr. 8, 2024).
    \178\ See 87 FR 26614, 26619 (May 4, 2022); 89 FR 24628, 24644 
(Apr. 8, 2024).
    \179\ See 87 FR 26614, 26619 (May 4, 2022); 89 FR 24628, 24644 
(Apr. 8, 2024).
    \180\ See 87 FR 26614, 26619 (May 4, 2022); 89 FR 24628, 24644 
(Apr. 8, 2024).
---------------------------------------------------------------------------

    Continuation of employment authorization and/or EADs is also a 
requirement for their employers who must comply with Form I-9, 
Employment Eligibility Verification, requirements in order to continue 
to employ these employees.\181\ In addition, some employers, 
notwithstanding

[[Page 101225]]

possible violation of section 274B of the INA, 8 U.S.C. 1324b 
(governing unfair immigration-related employment practices), may be 
hesitant to hire asylum seekers in the first place if it appears 
maintaining their employment will be difficult due to potential lapses 
in employment authorization.\182\
---------------------------------------------------------------------------

    \181\ See 8 CFR 274a.2(b)(1)(vii).
    \182\ See 87 FR 26614, 26619 (May 4, 2022); 89 FR 24628, 24645 
(Apr. 8, 2024).
---------------------------------------------------------------------------

    Continuous employment authorization and documentation during the 
pendency of an asylum application is vital for asylum seekers in the 
United States to access housing, food, and other necessities.\183\ In 
addition, asylum seekers may need income from employment to access 
medical care, mental health services, and other resources, as well as 
to access legal counsel in order to pursue their claims before USCIS or 
EOIR.\184\ Access to mental health services is particularly crucial for 
asylum seekers due to the prevalence of trauma-induced mental health 
concerns, including depression and post-traumatic stress disorder.\185\ 
The physical harm experienced by many asylum seekers frequently 
necessitates continuous medical care for extended periods of time.\186\ 
Finally, the purpose for which asylum seekers came to the United States 
is to seek long-term protection by receiving asylum.
---------------------------------------------------------------------------

    \183\ See 87 FR 26614, 26619 (May 4, 2022); 89 FR 24628, 24645 
(Apr. 8, 2024).
    \184\ See 87 FR 26614, 26619 (May 4, 2022); 89 FR 24628, 24645 
(Apr. 8, 2024).
    \185\ See 87 FR 26614, 26619 (May 4, 2022); 89 FR 24628, 24645 
(Apr. 8, 2024).
    \186\ See 87 FR 26614, 26619 (May 4, 2022); 89 FR 24628, 24645 
(Apr. 8, 2024).
---------------------------------------------------------------------------

    In addition, having unexpired employment authorization and EADs is 
necessary for certain noncitizens such as asylum applicants and TPS 
beneficiaries when they require proof of identity or immigration 
status. For example, the only acceptable document available to some 
noncitizens such as asylum applicants and TPS beneficiaries to 
establish identity for other purposes, such as obtaining a REAL ID-
compliant driver's license or identification card, may be an unexpired 
EAD.\187\ Following full implementation of REAL ID requirements, if an 
individual chooses to present a state-issued driver's license or 
identification card for defined official purposes, including access to 
certain Federal facilities and boarding federally regulated commercial 
aircraft, the driver's license or identification card must be REAL ID-
compliant.\188\ Without an unexpired EAD, certain classes of 
noncitizens would not be able to apply for REAL ID-compliant driver's 
licenses or identification cards.\189\
---------------------------------------------------------------------------

    \187\ 6 CFR 37.11(c).
    \188\ REAL ID Act of 2005, Public Law 109-13, div. B, Title II, 
Sec. 201(3) (May 11, 2005); 6 CFR Part 37.
    \189\ 6 CFR 37.11(c)(1) lists the identity documents applicants 
of REAL ID-compliant driver's licenses and identification cards must 
provide.
---------------------------------------------------------------------------

    To reduce the chance of the harmful effects caused by such lapses, 
DHS is permanently amending existing DHS regulations to increase the 
automatic extension period from up to 180 days to up to 540 days for 
all eligible renewal EAD application categories under 8 CFR 274a.13(d).

IV. Discussion of Public Comments

A. Summary of Comments on the 2024 TFR

    In promulgating the 2024 TFR, DHS invited the public to participate 
in the rulemaking by submitting comments and written data on any part 
of the 2024 TFR. In light of the concern about potential future lapses 
in employment authorization and/or the validity of their EAD as a 
result of spikes in application filings and other circumstances that 
impact USCIS processing of renewal EAD applications, DHS also invited 
the public to comment on the following three aspects:
     Whether DHS regulations should be revised to permanently 
lengthen the automatic extension period to up to 540 days for 
employment authorization and/or EAD validity for eligible renewal 
applicants;
     Whether a different extension period should be implemented 
for some or all applicants covered by the automatic extension provision 
on either a temporary or permanent basis; and
     Whether other solutions should be considered to mitigate 
the risk of expiring employment authorization and/or EAD validity for 
some or all applicants covered by automatic extension provisions.\190\
---------------------------------------------------------------------------

    \190\ 89 FR at 24648, 24674.
---------------------------------------------------------------------------

    The 2024 TFR provided a 60-day period for the public to submit 
comments at http://www.regulations.gov/ using the DHS docket number DHS 
Docket No. USCIS-2024-0002. In response to the request for comments, 
DHS received a total of 152 public comment submissions.
    Comments were submitted by a range of entities and individuals, 
including attorneys and legal service providers, applicants, 
applicant's family members, professional organizations, unions, 
advocacy groups, international organizations, religious organizations, 
research and community organizations, and state and local government 
agencies or elected officials.

B. General Support for the 2024 TFR

    Comment: Many commenters expressed their support for the 2024 TFR 
based on the positive impacts and benefits the 2024 TFR would have on 
noncitizens, their employers, their families, their support systems, 
their communities, and the public. Many commented on the devastating 
effects caused by gaps in employment authorization and documentation, 
including job loss, gaps in driver's license privileges and other 
professional licensing, and exploitation. Citing research, a commenter 
wrote that gaps in employment authorization and the concomitant 
financial instability also leave immigrants vulnerable to labor 
trafficking and exploitation.
    Commenters also stated that allowing applicants to continue to be 
able to work while waiting for USCIS to adjudicate their renewal EAD 
applications provided stability and job security for those workers and 
their families. Other commenters remarked that employment authorization 
is a critical tool that helps noncitizens successfully integrate into 
the United States and promotes self-sufficiency. Many commenters stated 
that non-citizens should not have to fear the loss of employment due to 
lengthy USCIS processing times.
    A commenter pointed out that the ability to work is especially 
important for marginalized noncitizens. Another commenter wrote that 
asylum seekers deserve the same right to work as U.S. citizens and 
expressed support for the longer extension period.
    A few commenters noted that the automatic EAD extension would give 
relief to legal services providers who are already overburdened by high 
caseloads, time-consuming work related to EAD delays and renewals, and 
staffing shortages. One commenter stated that gaps in employment 
authorization due to USCIS processing delays cause applicants relying 
on pro bono legal services significant distress, which, in turn creates 
more work for the services' overburdened staff.
    A few commenters noted the concerns that having expired employment 
authorization aggravates the abuse, labor violations, and retaliation 
that noncitizens already encounter in the workplace, leading these 
noncitizens to take jobs that are underpaid and present unsafe working 
conditions. One commenter stated that Black people, indigenous people, 
and other people of color are particularly susceptible to working in 
dangerous jobs and the informal economy, leading to more encounters 
with law enforcement.

[[Page 101226]]

    One commenter remarked that many workers are disincentivized from 
reporting labor violations and poor working conditions due to concerns 
over workplace abuse and retaliation from employers taking advantage of 
gaps in work authorization, thereby reinforcing the need for timely 
processing of work authorization and the commenter's support for the 
rule.
    Indicating an understanding of the difficulties that gaps in work 
authorizations can cause to both foreign-born workers and business 
operations, a commenter expressed appreciation for USCIS' efforts to 
improve the harmful impacts of backlogs in the adjudication of EAD 
applications.
    Response: As outlined in the 2024 TFR, DHS is aware that an 
automatic extension period of up to 180 days insufficiently addresses 
the stresses of the EAD renewal process on applicants, their families, 
legal services providers, and employers, and takes note of the 
consequences for these groups when renewal EAD applications are not 
timely processed. DHS is aware of the many benefits that the DHS TFRs 
provided to eligible renewal EAD applicants by increasing the automatic 
extension period to up to 540 days and DHS believes that making the up 
to 540-day automatic extension permanent is necessary to mitigate 
against these harms on a long-term basis.

C. General Opposition to the 2024 TFR

    Comment: A commenter expressed opposition to the 2024 TFR, 
reasoning that, by publishing the rule in the Federal Register, DHS did 
not provide enough transparency for the public because the public does 
not read the Federal Register. The commenter stated that no foreigners 
should be in the United States. The commenter alleged that the 2024 TFR 
would allow noncitizens to remain in the United States, during which 
time they would participate in fraudulent election activities and other 
criminal activities that according to the commenter they are paid to 
commit.
    Response: By law, substantive agency rules of general applicability 
are published in the Federal Register.\191\ The Federal Register is the 
official daily publication to notify the public of rules, proposed 
rules, and notices of Federal agencies and organizations. Therefore, 
DHS followed the standard method of providing notice of the 2024 TFR 
and an opportunity to comment. The commenter's remarks about the 
potential for noncitizens to engage in unlawful actions are speculative 
and beyond the scope of this rulemaking, and therefore we will not 
address them. The purpose of the 2024 TFR was amply laid out in the 
preamble to that document,\192\ and has nothing to do with alleged 
election fraud or enabling criminal activity.
---------------------------------------------------------------------------

    \191\ See 5 U.S.C. 552, 553; see also 44 U.S.C. Chapter 15 
(Federal Register and Code of Federal Regulations).
    \192\ See, e.g., 89 FR 24628, 24628-29 (Apr. 8, 2024).
---------------------------------------------------------------------------

    Comment: A commenter indicated that the automatic extension does 
not help because companies generally will not employ someone with a 
facially expired EAD.
    Response: DHS notes that an employer that rejects acceptable 
documentation for Form I-9, Employment Eligibility Verification, that 
appears to be genuine and relates to the employee, based on the 
employee's citizenship status or national origin, may violate the INA's 
anti-discrimination provision, found in Section 274B of the INA, 8 
U.S.C. 1324b.\193\ The INA prohibits discrimination against employees 
and applicants for employment in hiring, firing, and recruitment on the 
basis of citizenship status or national origin, unfair documentary 
practices, as well as retaliation for engaging in protected activity, 
such as filing a complaint based on these prohibited actions.\194\ The 
U.S. Department of Justice, Civil Rights Division, Immigrant and 
Employee Rights Section (IER) enforces the INA's anti-discrimination 
provision.\195\ Employees may seek redress through IER, whose 
jurisdiction includes investigating claims that valid documentation was 
rejected during the Form I-9 process based on a worker's citizenship 
status or national origin. To address concerns that employers will not 
hire someone with a facially expired EAD, USCIS also has clarified 
guidance and tools available on its website to help employers 
understand the requirements for eligibility for extensions of 
employment authorization and/or EADs.\196\
---------------------------------------------------------------------------

    \193\ DHS, USCIS, M-274, Handbook for Employers, Section 11.2 
Types of Employment Discrimination Prohibited Under the INA (last 
reviewed/updated July 25, 2023), https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274/110-unlawful-discrimination-and-penalties-for-prohibited-practices/112-types-of-employment-discrimination-prohibited-under-the-ina (last visited 
Oct. 23, 2024).
    \194\ See 8 U.S.C. 1324b.
    \195\ See DOJ, Civil Rights Division, Immigrant and Employee 
Rights Section, https://www.justice.gov/crt/immigrant-and-employee-rights-section (last visited Oct. 23, 2024).
    \196\ See DHS, USCIS, Automatic Employment Authorization 
Document (EAD) Extension (last reviewed/updated Oct. 9, 2024), 
https://www.uscis.gov/eadautoextend (last visited Oct. 23, 2024) 
(including the Automatic Extension Eligibility Calculator tab).
---------------------------------------------------------------------------

D. Legal Authority

    Comment: Some commenters noted that DHS was acting within its legal 
authority when it issued the 2024 TFR. A commenter supporting the 2024 
TFR wrote that ``adequate reception conditions are a necessary 
component of fair and efficient asylum procedures,'' and that access to 
work for asylum-seekers and other similarly situated populations is 
linked to the quality of reception conditions for asylum seekers. A 
commenter expressed support for the rule and commended DHS for 
preparing what it called a thorough analysis supporting the legal 
aspects of the 2024 TFR.
    Response: DHS agrees that it had ample legal authority to publish 
the 2024 TFR. DHS's primary goal was to help prevent a lapse in 
employment authorization and/or documentation for eligible renewal EAD 
applicants.

E. Purpose of the 2024 TFR

    Comment: Several commenters addressed the purpose of the 2024 TFR. 
One commenter wrote that DHS is correct in ``trying to find a path 
forward'' to process EAD applications and renewals, noting that the 
current situation seems ``dire.'' A commenter commended DHS's proactive 
efforts given the potential uncertainty surrounding the projected 
260,000 renewal EAD applicants facing a lapse in employment beginning 
in October 2025. The same commenter said that the imminent and near-
term needs of applicants and their U.S. employers justify the up to 
540-day automatic extension period provided by the 2024 TFR to address 
these needs and expressed the need to develop a longer-term solution 
after soliciting additional input and thoroughly assessing the effects 
of USCIS policy and operational changes.
    Other commenters noted their support of DHS's efforts to reduce 
backlogs, decrease processing times, streamline EAD application 
processing, and increase the maximum validity period to 5 years for 
certain EAD categories. Another commenter said that such efforts have 
not only resulted in improvements for EAD recipients, but also for 
resettlement case workers and legal service program staff who have 
saved time assisting clients to obtain these vital documents. A 
commenter indicated that, more broadly, the U.S. government's ongoing 
efforts around backlog reduction of the asylum backlog would prevent it 
from growing further, which, in turn, would reduce the need

[[Page 101227]]

for asylum seekers to renew EAD applications and will help mitigate the 
risks that those who are eligible for employment authorization and 
documentation face lapses in access. Another commenter remarked that 
DHS's efforts to decrease processing times generally and facilitate the 
EAD application process would alleviate burdens for migrant workers and 
their families.
    A commenter wrote that ensuring the right to work in fair 
conditions is enshrined in both international law and U.S. labor law, 
that a person is to be protected from labor violations and labor 
trafficking regardless of immigration status, and that the Refugee 
Convention framework calls upon the United States to guarantee labor 
protections to refugees and asylum seekers. The commenter asserted that 
the current employment authorization framework, with short 
authorization periods that lapse without adequate infrastructure to 
timely process renewals, violates these laws and that the U.S. 
government would benefit from an up to 540-day extension or longer as 
it retains the authority to withdraw an authorization should a benefit 
be denied or revoked. The commenter wrote that gaps in employment 
authorization undermine the United States' fulfillment of Article 24(1) 
of the 1951 Refugee Convention, and do not conform with the standards 
set forth in Article 6(1) of the International Covenant on Economic, 
Social and Cultural Rights, which urges states to ``recognize the right 
to work[.]'' \197\
---------------------------------------------------------------------------

    \197\ The United States has not ratified the International 
Covenant on Economic, Social and Cultural Rights.
---------------------------------------------------------------------------

    Another commenter added that DHS's efforts to ensure continued 
access to work authorization and documentation for refugees and asylum 
seekers as reflected in the 2024 TFR are consistent with international 
human rights and refugee law. Similarly, one commenter wrote that 
asylum seekers account for about 80 percent of the 800,000 work permit 
renewal applicants who might lose work authorization without the 
benefit of the 2024 TFR.
    Some commenters wrote that the backlog in processing EAD 
applications was not the workers' fault. While referencing an article 
in which a USCIS spokesperson was cited, a commenter wrote that 
preventing noncitizens from losing their work authorization would align 
with USCIS' priorities of preventing work authorizations for 
noncitizens from expiring through no fault of their own.
    Response: DHS agrees with those commenters who point out that the 
needs of EAD renewal applicants can be urgent and that addressing the 
imminent expiration of EADs for affected individuals is a critical 
priority. DHS also agrees with those commenters who note that workers 
with EADs are not at fault for the backlog. Correspondingly, DHS is 
issuing this final rule to address these concerns long-term and to 
prevent gaps in employment authorization for eligible renewal EAD 
applicants.
    DHS disagrees with the commenter's assertion that the current 
employment authorization scheme violates or is inconsistent with U.S. 
obligations under international law and specifically the 1951 Refugee 
Convention. Although the United States is a party to the 1967 Protocol, 
which incorporates Articles 2 to 34 of the 1951 Refugee Convention, 
this treaty is not self-executing; consequently, it is not directly 
enforceable in U.S law. It is the domestic implementing law that 
governs, and Supreme Court and other case law makes clear that the 
Protocol serves only as a useful guide in determining congressional 
intent in enacting the Refugee Act of 1980 because the Act sought to 
bring U.S. law into conformity with the Protocol. See, e.g., INS v. 
Stevic, 467 U.S. 407, 428 n.22 (1984); Khan v. Holder, 584 F.3d 773, 
783 (9th Cir. 2009).
    Congress implemented U.S. obligations with respect to certain 
provisions of the Refugee Convention in the Refugee Act of 1980. The 
Refugee Act, in particular, included provisions implementing Article 34 
of the 1951 Convention, which provides that State Parties ``shall as 
far as possible facilitate the assimilation and naturalization of 
refugees.'' Congress implemented Article 34 primarily through the INA's 
discretionary asylum and asylee and refugee adjustment of status 
provisions at sections 208 and 209 of the INA, 8 U.S.C. 1158, 1159. See 
INS v. Cardoza-Fonseca, 480 U.S. 421, 441 (1987). As the Supreme Court 
has recognized, Article 34 is ``precatory'' and ``does not require [an] 
implementing authority actually to grant asylum to all'' noncitizens 
determined to meet the definition of a refugee. Id.
    DHS also notes that the INA provisions and DHS regulations 
applicable to refugees and asylees fully comply with U.S. obligations 
under Articles 17 and 31 of the Refugee Convention, as incorporated in 
the 1967 Protocol. Note that paragraphs (1) and (3) of Article 17 
related to wage-earning employment state that ``The Contracting State 
shall accord to refugees lawfully staying in their territory the most 
favourable treatment accorded to nationals of a foreign country in the 
same circumstances, as regards to engage in wage-earning employment,'' 
and that ``The Contracting States shall give sympathetic consideration 
to assimilating the rights of all refugees with regard to wage-earning 
employment to those of nationals, and in particular of those refugees 
who have entered their territory pursuant to programmes of labour 
recruitment or under immigration schemes.''
    Even if Article 17 imposes any binding obligations, nothing in 
Article 17 requires DHS to provide employment authorization to 
noncitizens seeking refugee status or asylum before DHS or an IJ has 
made a final determination that they meet the definition of a refugee 
under 101(a)(42) of the INA, 8 U.S.C. 1101(a)(42), and grant the 
individual's application on that basis. Under the INA, DHS is not 
required to provide work authorization for asylum applicants, but DHS 
generally does so pursuant to its discretion. See INA section 
208(d)(2), 8 U.S.C. 1158(d)(2); 8 CFR 208.7, 274a.12(c)(8). Once DHS or 
an IJ has determined that a noncitizen meets the definition of a 
refugee and has been granted status, the noncitizen is immediately 
authorized to work pursuant to their status, consistent with the 
statute and regulations governing employment authorization for those 
who have been granted refugee status or asylum. See INA 208(c)(1)(B), 8 
U.S.C. 1158(c)(1)(B); 8 U.S.C. 1738; 8 CFR 274a.12(a)(3), (a)(5).
    DHS also believes that the employment authorization framework and 
this rule comply with U.S. obligations under Article 31.1 of the 
Refugee Convention, which also is non-self-executing. See Refugee 
Convention, Article 31.1 (``[C]ontracting States shall not impose 
penalties, on account of their illegally entry or presence, on refugees 
who, coming directly from a territory where their life or freedom was 
threatened . . . enter or are present in their territory without 
authorization, provided they present themselves without delay to the 
authorities and show good cause for their illegal entry or 
presence.''). DHS is not imposing a penalty on refugees who entered the 
United States without authorization or are unlawfully present.
    DHS, however, acknowledges that the up-to-180-day automatic 
extension can lead to gaps in employment authorization owing to 
operational considerations, and a permanent 540-day automatic extension 
will better protect against disruptions to EAD applicants, their 
families, and their

[[Page 101228]]

employers. DHS also acknowledges the fact that asylum applicants are 
one of the principal populations affected by the extension provided by 
the 2024 TFR, and that the processing time for asylum applications is 
an important consideration in the development of EAD renewal policies.
    DHS also agrees with commenters' observations that DHS has made 
important efforts to reduce processing times generally; such reductions 
in processing times benefit all EAD applicants.

F. Positive Impacts of the 2024 TFR

    Comment: Multiple commenters supported the 2024 TFR, stating that 
longer EAD automatic extensions would, as estimated by DHS in the 2024 
TFR, prevent over 800,000 noncitizens from losing their employment 
authorization and, as a result, losing their jobs. Numerous commenters 
stated that the increased temporary EAD automatic extension period 
would provide stability to noncitizens and allow them to continue 
supporting themselves and their families while awaiting a decision on 
their renewal EAD applications. One commenter stated that they 
frequently hear complaints from Oregon's immigrant community that 
current employment authorization renewals were extremely onerous for 
immigrants and their employers, and this immigrant community had 
reported pushback from employers while periodically seeking to renew 
their EADs. According to this commenter, some within this community had 
to take unpaid leave while waiting for their reextended EADs to arrive 
due to USCIS processing delays. This commenter indicated that immigrant 
households often having little or no available safety net when these 
individuals lose their ability to work for extended periods of time due 
to USCIS processing delays. According to the commenter, the 2024 TFR, 
while not solving the problem, would give the Oregon immigrant 
community members more job security, enabling them to provide for their 
families, and bolster Oregon's economy.
    A commenter wrote that the U.S. labor and employment laws generally 
protect all employees regardless of their immigration status. The 
commenter stated that Title VII of the Civil Rights Act of 1964 
prohibits employment discrimination on the grounds of race, color, 
religion, sex or national origin, and that noncitizen employees may 
also bring claims for violations of wage and hour protections, 
occupational health and safety violations, and more. The commenter 
stated that the 2024 TFR would provide further protections for 
noncitizen employees who are vulnerable to labor violations and 
mistreatment.
    Another commenter said that refugees, TPS holders, asylum seekers, 
and immigrants with pending green card applications or withholding of 
removal need the protection afforded by the 2024 TFR in order to be 
productive members of society. A commenter remarked that employment 
authorization is a critical tool that helps noncitizens in its state 
successfully integrate into the United States.
    Other commenters reasoned that a permanent increase would benefit 
the U.S. Government, service providers, employers, and workers thanks 
to less paperwork, more continuity and stability in business staffing, 
increased worker productivity, and family stability. Another commenter 
said that a permanent extension would augment its own efforts to place 
employment-authorized individuals into the workforce by ensuring that 
those individuals can retain employment authorization.
    A commenter addressed the stress and time demands required of its 
clients to maintain vigilance and valid EADs despite ongoing delays in 
processing and EAD expirations, stating that increasing the automatic 
renewal period from 180 to 540 days would reduce harmful delays. The 
commenter also noted that due to long USCIS processing times, even 
applicants who apply for a renewal EAD 180 days prior to expiration of 
their current EAD are at risk of losing work authorization, and that 
the 2024 TFR's extensions are necessary due to the lengthy processing 
times.
    Some commenters wrote that asylum seekers are fleeing persecution 
and poverty in their home countries and lapses in work authorization 
contribute to instability and create anxieties for this population. 
Similarly, some commenters wrote that survivors of gender-based 
violence are particularly vulnerable and need timely access to 
employment authorization and economic opportunities.
    Some commenters reasoned that delays in adjudicating asylum 
applications add to the total delays in work authorization for many 
noncitizens. A commenter addressed the long affirmative asylum backlog, 
writing that some of their LGBTQ+ immigrant clients wait years to 
receive decisions and that the automatic extension increase would 
benefit clients who otherwise might lose employment, health insurance, 
and housing and may experience food insecurity.
    Several commenters expressed support for the 2024 TFR on the 
grounds that it would help individuals to maintain their licenses for 
work, such as truck drivers, ride-share drivers, and delivery service 
workers. These commenters also described the utility of EADs as a form 
of recognized identification, including for government interactions or 
travel, writing that such documentation is particularly needed for 
noncitizens who may no longer have access to passports or foreign birth 
certificates.
    Some commenters opined that the automatic extensions are 
beneficial, but that USCIS should do more, with one commenter 
characterizing automatic extensions as merely ``a band-aid solution for 
a larger problem.''
    Response: DHS believes that the positive impact of the 2022 and the 
2024 TFR demonstrates the value in having longer automatic extension 
periods. This final rule provides a long-term solution that should 
result in more continuous employment authorization and/or EAD validity 
that is more efficient for USCIS to administer and more predictable for 
renewal EAD applicants and their employers. DHS believes that it will 
provide stability and protection to renewal EAD applicants who are 
already authorized to work, as well as their families, their employers, 
the U.S. economy, and the public at large. Stability and predictability 
are particularly important given the vital role of the EAD that serves 
not only employment eligibility verification purposes, but also other 
purposes such as identity and immigration status verification for 
eligible public benefits and services.

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

1. Provide Stability and Decrease Burdens for U.S. Employers
    Comment: Multiple commenters said that the 2024 TFR and the 
increased automatic extension period would provide stability for 
employers, such as by relieving businesses from the impacts of losing 
or changing employees and associated hiring and training costs. Another 
commenter wrote that U.S. employers would benefit from smoother 
operations with more continuity and stability in staffing and that this 
benefit to businesses would support overall U.S. economic growth. 
Commenters, citing the 2024 TFR, also stated that the rule would 
protect up to 82,000 employers and that businesses and organizations 
would incur approximately $17.4 billion in labor

[[Page 101229]]

turnover costs if EAD recipients were to lose their work 
authorizations.
    Response: DHS acknowledges the 2024 TFR's benefits for U.S. 
employers and, by extension, the U.S. economy. As discussed in the 2024 
TFR, the potential effects of widespread lapses of EADs and employment 
authorization on U.S. employers were a significant reason for issuing 
the rule.\198\
---------------------------------------------------------------------------

    \198\ See 89 FR 24628, 24652, 24656 (Apr. 8, 2024).
---------------------------------------------------------------------------

    Comment: Some commenters remarked that the 2024 TFR would lessen 
the paperwork demands of repeated EAD renewals for U.S. employers, with 
one commenter stating that employers, due to high employee turnover on 
account of expiring work authorizations, find themselves scrambling to 
verify new-employee employment authorization or determine when 
reverification needs to occur, all while operating under the risk of 
civil monetary penalties if they do not properly maintain employment 
paperwork.
    Some commenters further wrote that the 2024 TFR and a permanent 
increase of the automatic extension period would increase worker morale 
and productivity by keeping workloads consistent.
    Response: DHS acknowledges these positive effects of the 2024 TFR 
on employers and their workforce.
2. Contributions to Local, State, and U.S. Economy
    Comment: Several commenters wrote in support that the 2024 TFR 
would benefit the U.S. economy, as worker retention and reduced 
turnover would stabilize the labor market. Referencing research, 
another commenter similarly stated that immigrants make significantly 
more economic contributions to the U.S. economy than they take away 
from State benefits or other State programs.
    Commenters described programs in states and cities that connect 
arriving noncitizens with immigration legal services, including 
employment authorization assistance. These commenters described the 
economic benefits the immigrant population provide to their regions and 
the critical role that continuous access to EADs plays in supporting 
immigrant workers.
    Expressing support for the 2024 TFR, a few commenters remarked that 
allowing noncitizens to work in legal ways and pay taxes benefits the 
U.S. economy. One commenter further reasoned that the 2024 TFR is 
beneficial because when noncitizens are able to work, they provide 
additional tax funding for public expenditures such as social services, 
education, infrastructure, and national security.
    Response: DHS agrees that the 2024 TFR has had positive economic 
effects.
3. Alleviate Shortages in the U.S. Labor Market
    Comment: Several commenters stated that the 2024 TFR would allow 
noncitizens to be a steady work force to fill jobs in needed fields, 
such as agriculture, construction, and health care, service industries, 
and warehouses. Commenters stated that employers and business leaders 
continually express that immigrant workers are essential to the U.S. 
economy, and that successful organizations consider the immigration 
system a resource for positions that are hard to fill, for seasonal or 
temporary workers, and for enriching their workforce with new cultures 
and ideas.
    Similarly, commenters described shortages within the U.S. labor 
market and expressed support for the TFR to address those shortages. 
Referencing research, commenters stated that the U.S. labor market has 
both acute and chronic labor shortages and that increased levels of 
migration into the U.S. addresses declines in the U.S. labor force due 
to the aging population. One commenting organization recommended that 
USCIS implement administrative policies that aid businesses with work 
permit-related processes.
    Response: DHS agrees that noncitizens contribute significantly to 
the U.S. economy and that the 2024 TFR and this rule help ensure that 
such contributions are not interrupted because of USCIS processing 
delays.

H. Impacts on the U.S. Government

    Comment: Commenters wrote that the 540-day extension established in 
the TFR would benefit USCIS by relieving the pressure of the backlog. 
Some noted that the current automatic 180-day EAD work extension is 
insufficient, as USCIS often takes more than 1 year to process an 
application, and they supported the extension so that USCIS would have 
more time to process applications.
    Commenters reasoned that the TFR would reduce the need for EAD 
renewal processing and thus would reduce USCIS resource challenges, 
allowing the agency to better allocate its staff time. Similarly, a 
commenter stated that the automatic extension of EADs would allow USCIS 
to focus resources on case-based analysis in areas other than EAD 
renewals.
    Several commenters stated that the TFR would benefit DHS by 
providing more time to consider long-term solutions suggested in public 
comments, evaluate policies and operations, and identify new strategies 
to improve review of EAD applications.
    Response: While DHS continues to emphasize adjudication of pending 
EAD renewals, DHS acknowledges these comments and notes that these 
positive effects on the U.S. government were among the reasons for the 
2024 TFR.\199\
---------------------------------------------------------------------------

    \199\ 89 FR 24628, 24648 (Apr. 8, 2024).
---------------------------------------------------------------------------

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

    Comment: A commenter stated that the TFR appears to exclude 
applicants who already received an automatic extension through the 2022 
TFR.\200\ The commenter said that applicants who applied in 2022 and 
are nearing the end of their previous extension could be ineligible for 
this new extension despite meeting all other criteria and still having 
a pending application due to processing delays. The commenter inquired 
about a solution to ensure that those described applicants could be 
eligible for the new extension.
---------------------------------------------------------------------------

    \200\ See 89 FR 24628, 24649 (April 82024). See 87 FR 26614 (May 
4, 2022).
---------------------------------------------------------------------------

    Response: While DHS is committed to preventing gaps in employment 
authorization and/or EAD validity in the future for applicants, as of 
June 30, 2024, about 150, or 0.06 percent, of pending renewal EAD 
applications had been pending beyond the end of the 540 day automatic 
extension period provided in the 2022 TFR, which signals that a second 
automatic extension period would have a marginal benefit at best.\201\ 
Based on a July 2024 analysis, USCIS projects that upwards of 46,000 
renewal applicants may lose at least 1 day of employment authorization 
and/or documentation between July 2024 and March 2027. This population 
includes approximately 21,000 noncitizens who filed renewal EAD 
applications covered by the 2022 TFR. These 21,000 expirations would 
occur between July 2024 and September 2025, with most expirations 
occurring after January 2025. The timing of these projected expirations 
will allow USCIS time to address these cases. USCIS has taken 
operational steps, such as training more officers to adjudicate C10 
renewal EAD applications, to further reduce the number of EAD renewal 
applicants who may lose at least 1 day of employment

[[Page 101230]]

authorization and/or documentation. Therefore, DHS declines to adopt a 
second extension period for those individuals who were covered by the 
2022 TFR.
---------------------------------------------------------------------------

    \201\ See DHS, USCIS, OPQ, I-765 Application for Employment 
Authorization Automatic Extension Eligible Renewals Pending Beyond 
540 Day Automatic Extension Pending as of June 30, 2024, CLAIMS 3 & 
ELIS, queried 08/2024 (showing that as of June 30, 2024, out of 
approximately 260,000 pending renewal EAD applications, under 150 
were pending for more than 540 days after expiration).
---------------------------------------------------------------------------

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

1. Permanent Increase to the Automatic Extension Period
    Comment: Many commenters endorsed a permanent increase to the 
automatic extension period. Commenters remarked that without a 
permanent increase, those who do not fall into up-to-5-year EAD 
categories are likely to experience lapses in employment starting in 
April 2026.
    Response: As explained in the 2024 TFR,\202\ the up to 180-day 
automatic extension period applies only to EAD renewals based on an 
employment authorization category that does not require the 
adjudication of an underlying application or petition before the 
adjudication of the renewal application.\203\ For the reasons explained 
in Part III.C of this preamble, however, DHS does support making the up 
to 540-day automatic extension period permanent, and is implementing 
this change in this rulemaking.
---------------------------------------------------------------------------

    \202\ See 89 FR 24628, 24632 (Apr. 8, 2024).
    \203\ See 8 CFR 274a.13(d).
---------------------------------------------------------------------------

i. Increase Necessary To Address Processing Backlogs
    Comment: Many commenters indicated that it is unlikely USCIS can 
eliminate the processing backlog within the next 2 years, and that DHS 
should thus make the 540-day automatic extension period a permanent 
inclusion in the regulations. These commenters argued that this would 
provide stability to immigrant workers and employers past the rule's 
implementation period. Commenters said that the recurrent use of 
temporary rulemaking to increase the automatic extension period signals 
the need for more permanent solutions to meet current and future needs. 
One commenter said that the uncertainty generated by successive 
temporary fixes harms workers by allowing employer misconduct and 
creating worker anxiety. Similarly, another commenter stated that 
waiting to issue another rule with another extension, which would then 
be subject to another notice-and-comment period, would fail to protect 
against subsequent processing delays. Commenters also added that the 
current delays in processing and the ongoing need for expanded validity 
periods are unlikely to change, thereby weighing in favor of a 
permanent increase to the automatic extension period, but that DHS 
could in a future rulemaking end such a permanent increase if 
processing times improve. A commenter said that a permanent extension 
would save taxpayer dollars by reducing labor costs and overtime hours.
    Response: DHS agrees that the automatic extension should be made 
permanent and is making the up to 540-day automatic extension period 
permanent with this final rule.
ii. Benefit to USCIS
    Comment: While supporting DHS's efforts to address existing 
backlogs, a commenter stated that the measures in place would not 
meaningfully reduce backlogs enough to account for the unprecedented 
rise in global displacement and increased migration. Other commenters 
indicated that a permanent extension would provide USCIS the 
opportunity to reallocate resources and continue to process backlogs 
more efficiently and result in less negative feedback and 
communication, particularly because past automatic EAD extensions have 
been successful. A commenter indicated that previous up-to 540-day 
automatic extensions coincided with significant improvements in EAD 
processing times, without undermining the integrity of the immigration 
system.
    Response: DHS agrees that the automatic extension should be made 
permanent and is making the up to 540-day automatic extension period 
permanent in this rulemaking.
iii. Benefit to Workers
    Comment: Many commenters remarked on the potential benefits of a 
permanent extension for workers, their families, and communities, 
including long-term predictability and reduced anxiety around job 
stability. Some commenters stated that a permanent extension of the 
automatic extension period would ease burdens on non-governmental 
organizations and community partners, because the individuals would 
have more clear pathways to self-sufficiency with stable work. Other 
commenters said that a permanent extension would help workers continue 
to provide for their families, while simultaneously addressing labor 
shortages and strengthening the economy. Some commenters referenced 
numerous examples of individuals who have been affected by EAD renewal 
delays and the significant hardships they have faced as a result.
    Commenters also stated that noncitizens in the workforce are 
particularly vulnerable to workplace harassment, exploitation, and 
violence, which would be worsened by gaps in employment authorization. 
One of these commenters said that without a permanent 540-day automatic 
extension in place, affected workers may be unwilling to report labor 
violations if their statuses lapse because of the fear of retaliation 
or deportation. Another commenter said that making the change permanent 
would protect against radical shifts in policy in the event of a new 
presidential administration, which could otherwise affect the 
continuity of EADs.
    Response: DHS agrees that the increased automatic extension period 
of up to 540-days should be made permanent. For the reasons explained 
in this rulemaking, DHS is making the up to 540-day automatic extension 
period permanent in this rulemaking.
iv. Benefit to Employers
    Comment: Some commenters said that a permanent increase of the 
automatic extension period to up to 540 days would enhance workforce 
stability for employers, prevent disruptions, and limit the resource 
intensive task of finding workers to replace those lost because of 
administrative barriers.
    Other commenters added that a permanent extension would simplify 
and clarify oversight for employers. One commenter remarked that the 
current Form I-9, Employment Eligibility Verification, process is 
confusing for employers and would only become more confusing with 
repeated temporary rulemakings, because with each subsequent temporary 
rule, a new temporary period would be added to 8 CFR 274a.13(d), as was 
done for each of the first two TFRs. The commenter argued that this 
constant updating and adding of provisions is confusing for employers, 
workers, and the general public. Others said that a permanent increase 
of the automatic extension period would maintain the continuity of 
business operations, ensure that employers would not inadvertently 
allow workers to work with lapsed authorizations, and, citing reports 
on the impacts of lapses in work authorization on employers, afford 
increased security and clarity to the business community.
    A commenter said that employers would benefit from the increased 
stability a permanent extension would provide, because since 2021, 
employers have regularly lost critical workers due to processing 
delays. Another commenter urged USCIS to limit disruptions to 
employment and make working with legal authorization more accessible 
and easily attainable.

[[Page 101231]]

    Response: DHS agrees that the automatic extension period of up to 
540 days should be made permanent. For the reasons explained in this 
rulemaking, DHS is making the automatic extension permanent in this 
rulemaking.
2. Increase the Automatic Extension Period to 730 Days
    Comment: Multiple commenters requested that DHS implement a 730-day 
automatic extension period instead of another 540-day extension period. 
One commenter making this request mentioned a 720-day period, but did 
not distinguish this from a 730-day period. A commenter stated that 
DHS's goal of addressing near-term needs would still be met by a 730-
day extension period, and that a longer period would ameliorate the 
anxieties experienced by workers, itself a significant near-term need.
    A commenter said that during the last 540-day automatic extension 
period under the 2022 TFR, the commenter represented individuals who 
properly, timely filed their EAD renewals and did not have their EAD 
applications adjudicated within 540 days. The commenter stated that 
there would be no downside in offering a longer extension period, only 
significant benefits. Another commenter said that increasing the 
automatic extension period to 730 days would preserve and enhance 
immigrant workers' contributions through increased taxes, productivity, 
and entrepreneurship, as well as provide more stability for businesses 
at risk of losing employees and strengthen hiring prospects for 
immigrants of color whose uncertain legal status may otherwise 
jeopardize their job options.
    Many commenters reasoned that a 730-day extension would be 
particularly important because, under the 540-day extension of the 2024 
TFR, hundreds of thousands of individuals would still be susceptible to 
a lapse in employment authorization, which could be harmful for workers 
and businesses alike. A commenter said that, while there may be 
operational challenges involved with a 730-day extension, the benefits 
would outweigh the burdens, which could be mitigated through 
educational materials to reduce confusion and by specifying that 
(a)(12) and (c)(19) EAD categories would remain at 540 days. Another 
commenter echoed this view, stating that although employers have 
adequately handled changes to validity dates before, the agency could 
minimize employer confusion by taking reasonable steps to keep them 
informed.
    Other commenters specified that DHS should provide a 730-day work 
permit extension to all eligible applicants, including those who 
previously received a 540-day extension under the 2022 TFR. The 
commenters said this approach would clarify guidance for employers 
while ensuring that immigrant workers do not fall out of the workforce 
due to processing delays. A few commenters wrote that because 
noncitizens are integral to the workplace, industries and the larger 
economy would be hurt by a lapse in work authorizations.
    A commenter remarked that a 540-day or 730-day automatic extension 
would help individuals maintain stable housing and access to healthcare 
and childcare, which would ultimately improve mental well-being and 
reduce trauma. Similarly, a commenter said that a 730-day extension 
would better protect noncitizens who are already navigating complex 
asylum procedures and processing significant trauma while caring for 
their families. A commenter said that organizations working on behalf 
of noncitizens experiencing processing delays would also benefit, 
thereby allowing legal service providers to focus on long-term 
stability options for clients.
    A commenter expressed concerns that a 540-day extension would 
still, as estimated by DHS in the 2024 TFR, leave 260,000 EAD renewal 
applicants unprotected, which would cause those applicants to lose 
their drivers' and professional licenses and other critical benefits 
and would significantly harm the workers, their families, their 
communities, and the national economy at large. Further, the commenter 
said that leaving hundreds of thousands of workers with lapses in work 
authorization would leave them more susceptible to turning to the 
informal labor market, where the already-vulnerable workers may face 
poor working conditions, harassment, and exploitation.
    A legal services provider agreed with DHS that different automatic 
extension periods for separate groups would be confusing for 
noncitizens and employers alike, and therefore expressed support for a 
single automatic extension length of 730 days.
    A commenter stated that neither USCIS nor the Federal Government 
would be negatively impacted by extending the automatic extension 
period to up to 730 days. Another commenter expressed support for the 
steps that USCIS already took to address the backlog but urged USCIS to 
be realistic in its analysis of current needs so that renewal 
applicants do not bear the burden of uncertainty. A commenter noted 
that the longer automatic extension period would allow USCIS to focus 
its resources on adjudicating initial EAD applications, thereby 
reducing USCIS' workload. Similarly, a couple of commenters said that 
USCIS would benefit from a 730-day automatic extension period, adding 
that it would eliminate unnecessary administrative burdens.
    Response: DHS declines to adopt an automatic extension period 
longer than the current up to 540-day period. As noted in the 2024 
TFR,\204\ an automatic extension period longer than 540 days could lead 
to additional confusion and work for employers. By statute, TPS is 
designated for no more than 18 months which is about 540 days, and the 
associated employment authorization and EAD are limited to the same 
period as the designation.\205\ The length of the automatic EAD 
extension period thus aligns with the maximum incremental period of the 
TPS. If USCIS were to create an automatic extension period longer than 
540 days, it would have to also create a separate automatic extension 
period for TPS-based EAD renewal applicants.\206\ This could lead to 
confusion for employers complying with Form I-9, Employment Eligibility 
Verification, requirements as employers would have to maintain separate 
tracking systems for their employees in different EAD categories. Also, 
as noted in the 2024 TFR,\207\ longer automatic extension periods 
increase the likelihood that an employer might unwittingly continue to 
employ a worker whose employment authorization is in fact no longer 
valid, because the likelihood of an adjudication, with the possibility 
of denial, increases as the period is lengthened.\208\ The up to 540-
day automatic extension period offers a clear and uniform approach that 
employers are already familiar with, avoiding unnecessary complexities 
and the risk that this final rule will result in

[[Page 101232]]

confusion. In addition, DHS also noted in the 2024 TFR that because 
employers are assessing the applicability of the automatic extension 
based in part on a non-secure document (such as Form I-797C, Notice of 
Action, which is printed on plain paper), the preference of DHS is for 
shorter validity periods for temporary, non-secure documents.\209\
---------------------------------------------------------------------------

    \204\ See 89 FR 24628, 24647 (Apr. 8, 2024).
    \205\ See INA secs. 244(a)(2), (b)(2), (d), 8 U.S.C. 
1254a(a)(2), (b)(2), (d); 8 CFR 244.12.
    \206\ Although the duration of TPS designations and 
redesignations is at the Secretary of Homeland Security's 
discretion, 18 month periods are the historical norm. This final 
rule, however, does not create an entitlement to an automatic 
extension that exceeds the period of a TPS designation.
    \207\ See 89 FR 24628, 24648 (Apr.8, 2024).
    \208\ As explained in detail in the 2024 TFR, because employers 
may face civil money penalties if they do not properly maintain 
employment eligibility verification paperwork, or employ a 
noncitizen without employment authorization, the risk stemming from 
a mistake stemming from different automatic extension periods is not 
insignificant. See 80 FR 24628, 24648 (Apr. 8, 2024).
    \209\ See 89 FR 24648 (Apr. 8, 2024).
---------------------------------------------------------------------------

    As indicated in the 2024 TFR, the up to 540-day automatic extension 
period also appears to be an appropriate increase that has been 
sufficient for the majority of applicants to avert gaps in employment 
authorizations and/or EAD validity and is better reflective of 
processing times since the 2022 TFR was published.\210\ As one example, 
as of June 30, 2024, about 150, or 0.06 percent, of pending renewal 
applications had been pending beyond the 540-day automatic extension 
period. Therefore, DHS does not believe a longer period is needed.\211\ 
Based on a July 2024 analysis, USCIS projects that 46,000 renewal 
applicants may lose at least 1 day of employment authorization and/or 
documentation between July 2024 and March 2027. This population 
includes approximately 21,000 renewal EAD applications filed during the 
period covered by the 2022 TFR. These 21,000 expirations would occur 
between July 2024 and September 2025, with most expirations occurring 
after January 2025. The timing of these projected expirations will 
allow USCIS time to make operational changes to address these cases, 
such as continuing to build on and improve automation to reduce the 
manual resources needed to complete adjudications.
---------------------------------------------------------------------------

    \210\ See 89 FR 24628, 24645 (Apr. 8, 2024).
    \211\ See DHS, USCIS, OPQ, I-765 Application for Employment 
Authorization Automatic Extension Eligible Renewals Pending Beyond 
540-Day Automatic Extension Pending as of June 30, 2024, CLAIMS3 & 
ELIS, queried 08/2024 (showing that as of June 30, 2024, out of 
approximately 260,000 renewal EAD applications pending, under 150 
were pending more than 540 days after expiration).
---------------------------------------------------------------------------

    As commenters noted, in the analysis for the 2024 TFR, DHS 
projected that approximately 260,000 renewal EAD applicants may lose at 
least 1 day of employment authorization and/or documentation despite 
the 540-day automatic extension period. This projection was based on 
the conditions in place at the time of the analysis in late 2023. That 
projection therefore could not take into account the complete effect of 
operational and policy changes described in the TFR, combined with any 
future changes and operational shifts (such as hiring additional 
officers or implementing technological improvements for processing 
efficiency). However, a July 2024 analysis that considers changes made 
through June 30, 2024, yields a projection that approximately 46,000 
renewal EAD applicants may lose at least 1 day of employment 
authorization under the 2022 and 2024 TFRs, between and including July 
2024 and March 2027.\212\ This population is primarily comprised of 
renewal applicants in the C10 EAD category (Suspension of Deportation/
Cancelation of Removal). There are multiple reasons for the change in 
this estimate, which are specific to each EAD classification. These 
reasons include: recent changes in filing patterns (such as the asylee 
A05 category filing their EAD renewal request earlier with respect to 
their previous EAD expiration data, allowing USCIS more time to 
adjudicate these renewal applications before expiration), an increased 
number of C08 renewal EAD application adjudications (in FY 2023, USCIS 
averaged 31,700 C08 adjudications per month, while in the first 9 
months of FY 2024, USCIS increased C08 adjudications by 17.6% to 37,300 
per month), a reduction in C09 renewal EAD application receipts 
(partially due to improvements in the Form I-485 processing times), and 
other increased efficiencies. In addition, USCIS has taken operational 
steps, such as training more officers to adjudicate C10 renewal EAD 
applications, to further reduce the number of EAD renewal applicants 
who may lose at least 1 day of employment authorization and/or 
documentation. The substantial reduction in potential lapses supports 
DHS's conclusion that up to 540 days is a sufficient automatic 
extension period.
---------------------------------------------------------------------------

    \212\ See Administrative Record, Auto Extension Analysis--July 
2024.
---------------------------------------------------------------------------

    Finally, multiple automatic extension periods also make it more 
difficult for USCIS to ensure the accuracy of responses for SAVE \213\ 
and E-Verify,\214\ programs that USCIS manages that verify immigration 
status and naturalized/acquired U.S. citizenship, and confirm 
employment eligibility, respectively. SAVE and E-Verify rely on 
information from the record source systems, and multiple automatic 
extension periods would require additional enhancements to DHS's record 
source systems to ensure accurate information is provided to registered 
benefit granting agencies and employers through SAVE and E-Verify, 
respectively. The implementation of multiple automatic extension 
periods that vary depending on the category of applicant would take 
USCIS information technology resources away from other high priority 
projects to include online filing, transitioning to person-centric case 
management from form-centric case management, and backlog reduction 
projects.
---------------------------------------------------------------------------

    \213\ SAVE is an electronic service that USCIS administers for 
registered Federal, state, territorial, tribal, and local government 
agencies to verify immigration status and naturalized/derived U.S. 
citizenship of applicants seeking benefits or licenses. See DHS, 
USCIS, SAVE, https://www.uscis.gov/save (last visited Oct. 23, 
2024).
    \214\ USCIS administers E-Verify, a voluntary program authorized 
by Title IV, Subtitle A, of the Illegal Immigration Reform and 
Immigrant Responsibility Act of 1996 (IIRIRA), Public Law 104-208, 
110 Stat. 3009, as amended (8 U.S.C. 1324a note) that allows 
enrolled employers to electronically confirm the employment 
eligibility of their new employees. See https://www.e-verify.gov/.
---------------------------------------------------------------------------

    Comment: A commenter disagreed with the suggestion that a 540-day 
extension would fall more squarely within the ``good cause'' rulemaking 
exception than a longer automatic extension period. The commenter 
asserted that 730 days would have also been a limited measure and 
appropriately tailored to address the imminent lapses. The commenter 
urged DHS to adopt a longer automatic extension period of 730 days in 
the final rule. Another commenter also said that a 730-day extension 
would be better than a 540-day extension, but argued that DHS could 
extend EADs even further, to 48 months, similar to the conditional 
lawful permanent resident (LPR) extensions following from the 
submission of Form I-751.\215\ The commenter stated that those 
extensions, which help to protect the LPRs who are prevented from 
obtaining ID cards or certain benefits because they lack documents from 
DHS, could be similarly applied to the equally meritorious noncitizens 
awaiting EADs.
---------------------------------------------------------------------------

    \215\ In 2023, USCIS extended the validity of Permanent Resident 
Cards (also known as Green Cards) for petitioners who properly file 
Form I-751, Petition to Remove Conditions on Residence, or Form I-
829, Petition by Investor to Remove Conditions on Permanent Resident 
Status for 48 months beyond the card's expiration date. See DHS, 
USCIS, USCIS Extends Green Card Validity for Conditional Permanent 
Residents with a Pending Form I-751 or Form I-829, https://www.uscis.gov/newsroom/alerts/uscis-extends-green-card-validity-for-conditional-permanent-residents-with-a-pending-form-i-751-or (last 
visited Aug. 16, 2024).
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    Response: By limiting the automatic extension to up to 540 days as 
the minimum period necessary to avert the imminent near-term harm while 
USCIS was working to improve processing time and seeking comments on 
the TFR, DHS did not intend to imply or suggest that an up to 540-day 
extension would fall more squarely within the APA good cause exceptions 
at 5 U.S.C. 553(b)(B)) and (d)(3) than an up to 730-day automatic 
extension period.\216\ Rather,

[[Page 101233]]

DHS appreciated that the 2024 TFR did not resolve potential uncertainty 
with respect to all renewal EAD applications given the variables that 
impact data projections, and DHS believed it was premature to grant an 
automatic extension up to 730 days.\217\ Thus, given the special 
circumstances, the temporal limitation and the narrowly-scoped 
population covered by the 2024 TFR, the 540-day extension was 
appropriate and reasonable to avert imminent and near-term harm to a 
specific class of applicants and their employers.\218\ This narrowly 
tailored extension provided DHS additional time to pursue long term 
solutions, solicit public input, and fully assess the effect of policy 
and operational measures taken to reduce the backlog.\219\
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    \216\ In the 2024 TFR, DHS also invoked the exception under 5 
U.S.C. 553(d)(1)--to wit, a substantive rule which grants or 
recognizes an exemption or relieves a restriction--to the APA's 30-
day delayed-effective-date requirement following publication of a 
substantive rule. 89 FR 24628, 246540 (Apr. 8, 2024).
    \217\ See 89 FR 24628, 24648, 24654 (Apr. 8, 2024).
    \218\ See 89 FR 24628, 24653 (Apr. 8, 2024).
    \219\ See 89 FR 24650-54 (Apr. 8, 2024).
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    For these same reasons, DHS declines to adopt the suggestion to 
increase the automatic extension period to 48 months (4 years). As 
discussed above, the up to 540-day automatic extension period offers a 
clear and uniform approach that employers are already familiar with, 
further reducing complexities and the risk that this final rule will 
result in confusion. Finally, DHS also notes that conditional lawful 
permanent residents are different from the classes of noncitizens 
affected by this rule. In contrast to those individuals, who do not 
have a permanent status, and could lose the basis for their EADs, 
conditional LPRs have received a final adjudication on their 
eligibility for lawful permanent residence on a conditional basis and 
are in fact LPRs even though their LPR status is subject to a future 
condition (i.e., filing for and eligibility to remove the condition 
once the LPR has fulfilled the requirements of the condition).
    Comment: A commenter suggested that DHS could apply different 
permanent automatic extension periods for dissimilar categories 
depending on what is operationally optimal so that businesses would not 
repeatedly be burdened by lapses caused by processing backlogs.
    Response: DHS declines to adopt the suggestion that different 
automatic extension periods be set for different EAD renewal 
categories. Doing so would be burdensome to both employers and USCIS. 
Employers would be required to determine the basis for an employee's 
renewal EAD application as part of the employment eligibility 
verification process and would also be forced to track the differing 
automatic extension periods for each category of renewal applications 
relevant to their workforce.

K. Expand EAD Categories Eligible for Automatic Extension

    Comment: Multiple commenters remarked on the applicability of the 
TFR to certain classes of noncitizens currently not eligible for an 
automatic extension, including: DACA recipients; U and T nonimmigrants; 
religious workers; those under an order of supervision; humanitarian 
parolees; and those with pending renewal EAD applications, regardless 
of whether the requested renewal category is the same category as their 
current EAD and whether they timely filed their renewal EAD 
applications.
    With respect to DACA recipients, commenters noted the adverse 
consequences of leaving those individuals without employment 
authorization given the vital roles that they play in their families, 
communities, and the U.S. economy. As for U and T nonimmigrants, 
commenters stated that access to stable and consistent employment could 
reduce vulnerability to abuse and exploitation. The commenters reasoned 
that stable income reduces the likelihood that survivors would need to 
rely on abusive family members, exploitative employers, or landlords. 
The commenters also reasoned that improving financial security for 
individuals and families helps to reduce and prevent intimate partner 
violence. A commenter who advocated for allowing an automatic extension 
for those with pending renewal EAD applications for different 
categories than their current EADs reasoned that this approach would 
prevent workers from leaving the workforce and avoid the economic 
challenges such workers might face if they did so. A commenter who 
suggested a further expansion of the rule to include individuals whose 
pending renewal applications were received by USCIS after the 
expiration date of their work permits explained that there may be 
reasons beyond an applicant's control that lead to delayed receipt of 
their renewal EAD applications, and the consequence of not 
automatically renewing their employment authorization owing to their 
late filings is not being able to lawfully work for one year or longer.
    Commenters also urged DHS to grant consecutive renewal grants for 
DACA and other deferred action recipients, so that the new DACA/EAD 
issuance begins on the date the prior issuance expired, rather than the 
date where USCIS approved the request. The commenters also suggested 
that DHS eliminate the 150-day queue policy, which prevents applicants 
from submitting a renewal application earlier than 150 days before 
their current DACA expiration. The commenter reasoned that this would 
allow applicants to file for a renewal early, without concern that the 
early approval would lead to an overlap in coverage. Additionally, the 
commenter stated that backdating the date of the renewal approval to 
avoid a gap in work authorization would provide applicants with 
stronger arguments to be placed on unpaid leave, rather than 
terminated, since their documents would ultimately reflect no gaps in 
work authorization or lawful presence. The commenter said that such a 
change could be accomplished through sub-regulatory guidance and would 
not be problematic in light of existing legal challenges concerning 
DACA.
    A commenter urged DHS to move forward with a final rule that is 
consistent with a robust implementation of the U.S. National Action 
Plan to End Gender-Based Violence,\220\ as well as ensuring consistency 
with congressional intent to reinforce the progress communities have 
made to protect survivors of domestic violence, sexual assault, and 
human trafficking under the Violence Against Women Act (VAWA). The 
commenter stated that stable employment plays a pivotal role in an 
individual's ability to escape and overcome domestic violence and 
sexual assault, and therefore applauded the inclusion of VAWA self-
petitioners and VAWA adjustment of status applicants under the 2024 
TFR. A commenter encouraged DHS to apply the rule to others who have 
sought extensions of their employment authorization, especially 
applicants for U nonimmigrant status who have received deferred action 
or employment authorization pursuant to a bona fide determination under 
INA 214(p)(6), 8 U.S.C. 1184(p)(6).
---------------------------------------------------------------------------

    \220\ See The White House, U.S. National Plan to End Gender-
Based Violence: Strategies for Action, https://www.whitehouse.gov/wp-content/uploads/2023/05/National-Plan-to-End-GBV.pdf (last 
visited Aug. 13, 2024).
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    Response: While DHS is sympathetic to the hardships that these 
groups face with expiring EADs and the circumstances that may lead to 
delayed renewal EAD application filings, DHS notes that expanding the 
categories of noncitizens who may receive an automatic extension under 
8 CFR 274a.13(d) is beyond the scope of this rulemaking. Similarly, 
comments

[[Page 101234]]

regarding the timing of DACA EAD approvals and the 150-day queue are 
also beyond the scope of this rule. Moreover, as noted in the 2024 TFR 
\221\ and as discussed in this final rule, eligibility for the existing 
180-day automatic extension, and for the increased automatic extension 
period, is limited to those EAD renewal applicants for whom an 
underlying adjudication regarding continued eligibility for an EAD is 
not required. Therefore, DACA recipients are ineligible.\222\ As for 
TPS beneficiaries, as noted in the 2024 TFR, the increased automatic 
extension period provided by the 2024 TFR is available to many TPS 
beneficiaries.\223\ Also, USCIS maintains information on its website 
that clarifies the availability of EAD automatic extensions.\224\ 
Consistent with what DHS previously stated in the AC21 Final Rule, DHS 
is amending 8 CFR 274a.13(d)(1)(i) \225\ to clarify that, for TPS-
related EADs, the automatic EAD extension provision applies to 
individuals who file their renewal EAD applications during the re-
registration period described in the Federal Register notice applicable 
to their country's TPS designation.\226\ In addition, DHS is adding 
language to clarify that the period of the up to 540-day automatic EAD 
extension starts the day after the expiration date on the face of the 
EAD.\227\
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    \221\ See 89 FR 24628, 24632 (Apr. 8, 2024).
    \222\ See 8 CFR 274a.13(d)(1)(iii).
    \223\ See 89 FR 24628, 24632 (Apr. 8, 2024).
    \224\ See 8 CFR 274a.13(d)(1); DHS, USCIS, Automatic Employment 
Authorization (EAD) Extension, https://www.uscis.gov/working-in-the-united-states/information-for-employers-and-employees/automatic-employment-authorization-document-ead-extension (last visited Aug. 
1, 2024).
    \225\ See new 8 CFR 274a.13(d)(1)(i).
    \226\ See 81 FR 82398, 82455 (Nov. 18, 2016).
    \227\ See 8 CFR 274a.13(d)(1).
---------------------------------------------------------------------------

    Regarding the suggestion that the automatic extension period apply 
to pending EAD renewals that were not timely filed, DHS declines to 
adopt this suggestion. For those noncitizens who are required to apply 
for employment authorization, their employment authorization generally 
expires on the date displayed on the EAD. Certain applicants who timely 
file a renewal application may receive an automatic extension of their 
work authorization while the timely filed renewal application is 
pending with USCIS. A noncitizen with expired employment authorization 
is, with certain exceptions, no longer authorized to work.\228\ With 
certain exceptions, there are adverse consequences for noncitizens who 
continue to engage in or accept unauthorized employment, including 
eligibility for future immigration benefits.\229\ Allowing noncitizens 
with an expired EAD to seek an automatic extension also creates 
difficulties for employers, who are held accountable as part of the 
Form I-9 Employment Eligibility Verification requirements.\230\ Thus, 
in recognition of the INA's approach regarding unauthorized 
employment,\231\ including the accountability of employers and related 
enforcement issues, DHS declines to accept the suggestion to allow 
those with expired employment authorization and/or EADs to apply for an 
up to 540-day automatic extension period. A rule addressing renewal 
applications that were not timely filed would go beyond the purpose of 
the automatic extension, which is to reduce the risk of a lapse in 
employment authorization due to USCIS processing delays for applicants 
who have already been determined to be eligible.\232\ If the renewal 
application is not timely filed, it may raise questions as to whether 
the applicant remains eligible for employment authorization under the 
same category, and thus the automatic extension might no longer be an 
extension of employment authorization where an underlying adjudication 
is not required to determine eligibility. Because there would not be a 
reasonable assurance of continued eligibility in cases where the 
renewal application is not timely filed, DHS declines to adopt the 
commenter's suggestion to provide for an automatic grant of employment 
authorization based on an untimely filed renewal application.
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    \228\ See, e.g., 8 CFR 274a.1(a) and 8 CFR 274a.14(a).
    \229\ For example, a noncitizen may be barred from adjusting 
status to that of a lawful permanent resident under INA 245, 8 
U.S.C. 1255. See INA 245(c)(2) and (c)(8), 8 U.S.C. 1255(c)(2) and 
(c)(8).
    \230\ See 8 CFR 274a.3 and 8 CFR 274a.10.
    \231\ See INA 274A, 8 U.S.C. 1324a.
    \232\ See 81 FR 82398, 82463 (Nov. 18, 2016) (explaining that 
the automatic extension provision ``helps to ensure that individuals 
are eligible to receive automatic extensions of their EADs under 
this rule only if there is reasonable assurance of their continued 
eligibility for issuance of a full duration EAD.''); 89 FR 24628, 
24673 (Apr. 8, 2024) (noting that ``[t]his rule extends current 
employment authorization for individuals who are at risk of losing 
it solely because of USCIS processing delays.'').
---------------------------------------------------------------------------

    The remaining requests to expand the classes of people eligible for 
automatic extension are also beyond the scope of this rule, including 
allowing for the renewal EAD application category to be different than 
the category of the currently held EAD. Furthermore, in initially 
codifying the up to 180-day automatic extension, DHS explained that 
requiring the same category was meant to ensure that only eligible 
noncitizens receive automatic extensions of their EADs and to protect 
the employment authorization program from abuse. DHS reasoned that the 
resulting Notice of Action (Form I-797C) would indicate the employment 
authorization category cited in the application, which would help 
ensure, both to DHS and to employers, that such a notice was issued in 
response to a timely filed renewal application.\233\ The same reasoning 
would advise against adopting the commenters' suggestions here or in a 
future rulemaking.
---------------------------------------------------------------------------

    \233\ See 81 FR 82398, 82463 (Nov. 18, 2016).
---------------------------------------------------------------------------

    Comment: A commenter emphasized the importance of employment 
authorization and EADs for unaccompanied children with pending asylum 
applications, noting that these government-issued documents often serve 
as their only form of identification. While endorsing the 2024 TFR on 
the basis that it would allow children to access necessary services, 
safe and lawful employment, and eligible legal relief, the commenter 
also expressed concern for those who receive EADs through the deferred 
action policy issued by USCIS in March 2022,\234\ which, the commenter 
stated provides a pathway for deferred action and related employment 
authorization for youth with approved Special Immigrant Juvenile (SIJ) 
petitions. The commenter elaborated that, unlike SIJ-classified youth 
who receive EADs based on a pending adjustment application, youth who 
receive EADs through deferred action would not be eligible for 
automatic EAD extensions, which could become problematic within the 
next two years when their initial grants of up to four years of 
deferred action employment authorization expire. The commenter also 
remarked that EAD renewal backlogs could undermine the goals of the 
March 2022 SIJ deferred action policy and result in negative outcomes 
for both cohorts of SIJs, such as job loss. In light of these concerns, 
the commenter recommended the following measures, so that USCIS could 
prevent harm from government delays and ensure timely consideration of 
all EAD and humanitarian protection applications: (1) increasing the 
length of EAD validity periods to five years for additional categories; 
(2) permitting electronic filing for applications addressed through the 
automatic extension; (3) providing clearer documentation to demonstrate 
automatically-extended employment authorization, such as a stand-alone 
document, a paper card similar to the I-

[[Page 101235]]

94 card, or a specific receipt notice language confirming the automatic 
extension of validity of the EAD and stating the date through which the 
renewal applicant would remain authorized to work; and (4) prioritizing 
the timely adjudication of humanitarian protection applications that 
form the bases for employment authorization and lawful status to 
support the stability, independence, and wellbeing of unaccompanied 
children and others who are seeking protection.
---------------------------------------------------------------------------

    \234\ DHS, USCIS, Special Immigrant Juvenile Classification and 
Deferred Action (Mar. 7, 2022), https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20220307-SIJAndDeferredAction.pdf.
---------------------------------------------------------------------------

    Response: DHS notes that under the current regulations governing 
EAD renewals and the 180-day automatic extension, individuals who have 
received deferred action are not eligible for the automatic 
extension.\235\ Moreover, as part of this rulemaking, DHS is focused on 
issues related to categories currently covered by the automatic 
extension provision and does not address adding other employment 
categories. This rulemaking also does not address prioritizing the 
adjudication of humanitarian protection applications. Therefore, these 
concerns are beyond the scope of the 2024 TFR and will not be addressed 
in this rulemaking.
---------------------------------------------------------------------------

    \235\ See 8 CFR 274a.13(d)(1)(iii). See also DHS, USCIS, 
Automatic Employment Authorization Document (EAD) Extension (last 
reviewed/updated Oct. 9, 2024), https://www.uscis.gov/eadautoextend 
(last visited Oct. 23, 2024) (listing ``Categories Eligible for 
Automatic Extensions).
---------------------------------------------------------------------------

    With respect to permitting electronic filing for applications 
addressed through the automatic extension, expanding the categories 
that would be eligible for electronic filing is also beyond the scope 
of this rulemaking. That being said, USCIS is committed to employing 
technological solutions and efficiencies to reduce processing times. 
Offering the option to file Form I-765 online makes the process of 
applying for immigration benefits efficient, secure, and convenient for 
more applicants and increases operational efficiencies for USCIS. 
Therefore, separate from this rulemaking, USCIS will continue to track 
this issue and work to increase the number of categories eligible for 
online filing.
    As for providing clearer documentation to demonstrate automatically 
extended employment authorization and/or EADs, DHS is revising receipt 
notice language to be more clear and is looking for ways to do more, 
but is unable to tailor receipt notices at this time. Tailoring would 
require significant development work to program the USCIS Lockbox and 
its electronic counterpart, the Electronic Immigration System (ELIS), 
to produce Form I-797C, Notices of Action, that are more individualized 
to a given filing. This development work would also compete with or 
delay other USCIS development priorities. DHS will continue to explore 
technological improvements such as this one while considering the 
impact of such an effort on other priorities.

L. EAD Validity Period

    Comment: Commenters shared quotes from clients of legal service 
providers urging DHS to make EAD validity permanent or indefinite, or 
increase validity periods until asylum cases are processed, or previous 
work permits are renewed.
    Some commenters expressed support for the recent increase of the 
EAD validity period for certain categories and urged DHS to similarly 
increase the validity period for other EAD categories, reasoning that 
such an increase would reduce the number of renewal requests USCIS 
receives, help address existing backlogs and allow USCIS to direct 
resources to other vital areas.
    A commenter urged DHS to revise EAD validity periods to ensure that 
EADs remain valid for the entire period it takes to adjudicate cases 
before USCIS and in immigration court. The commenter said that such 
increased validity periods would support immigrant workers and their 
families, while also providing employers with stability and assurance 
that their workers' employment authorization will not lapse. The 
commenter said that the change would decrease the likelihood that DHS 
would need to repeatedly issue temporary rules to address 
administrative delays.
    Another commenter recommended that DHS align the validity period of 
an EAD with the duration of the visa holder's underlying immigration 
status, allowing the EAD authorization to continue for as long as the 
holder acts in good faith to extend their underlying status. A 
commenter suggested that DHS set the duration of the work permit for a 
fixed period, such as 5 years, and establish conditions for renewing 
the EAD with ease, including by allowing noncitizens to file renewal 
applications 1 year before expiration.
    A commenter stated that some noncitizens seek EADs as a valid form 
of identification necessary for employment and suggested that those 
individuals with an indefinite status should be issued an EAD with no 
expiration date, or with a validity period of at least 10 years.
    A commenter suggested that USCIS allow EADs to remain in effect 
indefinitely unless the noncitizen receives a removal order from a 
component of DHS. The commenter suggested that USCIS administer a 
database that employers can consult for noncitizens who have been 
issued a removal order.
    Response: DHS will not adopt the commenters' suggestion to issue 
EADs that are permanently or indefinitely valid. To do so would 
undermine the integrity of EADs. Individuals whose employment 
authorization is temporary would be in possession of an acceptable Form 
I-9, Employment Eligibility Verification, document that would not 
expire, even when the individual no longer has authorization to work. 
Having an expiration date on documents that show temporary employment 
authorization provides stability and certainty to employment-authorized 
individuals and their employers and promotes the ability of employers 
to fulfill their Form I-9 responsibilities. Without an expiration date, 
employers would not know when to reverify an employee with temporary 
employment authorization and could end up continuing to employ an 
unauthorized worker. Providing an expiration date for the EAD also 
reduces opportunities for fraud and allows USCIS to refresh the 
background checks and other security related processes that USCIS 
undertakes with each EAD application, in addition to verifying 
continuing eligibility for the EAD. These measures are consistent with 
reasoning from the AC21 Final Rule.\236\
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    \236\ In the AC21 Final Rule, DHS wrote that ``the main security 
and fraud risks underpinning DHS's decision to remove the 90-day EAD 
adjudication timeline and interim EAD requirements flow from 
granting interim EADs to individuals before DHS is sufficiently 
assured of their eligibility and before background and security 
checks have been completed.'' DHS expressed its belief that ``any 
reduction in the level of eligibility and security vetting before 
issuing evidence of employment authorization, whether on an interim 
basis or otherwise, would both be contrary to its core mission and 
undermine the security, quality, and integrity of the documents 
issued.'' See 81 FR 82398, 82462 (Nov. 18, 2016).
---------------------------------------------------------------------------

    The EAD renewal requirement thus allows DHS to ensure that 
continued employment authorization is merited by the noncitizen's 
circumstances. In addition, if the EAD of an employee with temporary 
employment authorization does not have an expiration date, there would 
be no reverification date for the employer to check whether the 
employee continues to be employment authorized.\237\ The temporary 
validity of an EAD prompts employers to periodically verify that their 
employees with temporary employment authorization continue to be 
authorized to work since it is unlawful to employ unauthorized

[[Page 101236]]

workers.\238\ Furthermore, it is unlawful for employers to continue to 
employ a noncitizen who is or has become unauthorized to work.\239\
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    \237\ See 8 CFR 274a.2(b)(1)(vii).
    \238\ See INA 274A(a)(1), 8 U.S.C. 1324a(a)(1).
    \239\ See INA 274A(a)(2), 8 U.S.C. 1324a(a)(2).
---------------------------------------------------------------------------

    Permanent or indefinite EAD validity would also place a burden on 
USCIS to periodically affirm that the noncitizen remains eligible for 
the EAD, and, if they do not, initiate contact with the noncitizen, who 
may have moved without informing USCIS. This would further strain USCIS 
resources and potentially have an adverse effect on general EAD 
processing.
    The suggestion that EAD validity periods correlate with the 
duration of an asylum adjudication or immigration court proceedings is 
beyond the scope of the rule. Moreover, the length of such proceedings 
for any individual case is highly variable, making it challenging to 
set a specific validity period. For similar reasons, DHS also declines 
to adopt the recommendation that all EAD validity periods be aligned 
with underlying status or be made valid for 10 years for those with 
indefinite status seeking to use their EADs for identification 
purposes--individual circumstances vary such that an across-the-board 
indefinite or 10-year validity period is inappropriate. DHS further 
notes that there are other forms of state-issued identification that 
may better serve as identification.
    DHS also declines to adopt the suggestion that EAD validity periods 
be increased for additional populations beyond those for which USCIS 
now issues EADs with an up-to-five-year validity period,\240\ as this 
comment is beyond the scope of this rule, which addresses the renewal 
EADs for those applicants covered by the automatic extension provision 
at 8 CFR 274a.13(d)(1).
---------------------------------------------------------------------------

    \240\ See DHS, USCIS, USCIS Increases Employment Authorization 
Document Validity Period for Certain Categories (Sept. 27, 2023), 
https://www.uscis.gov/newsroom/alerts/uscis-increases-employment-authorization-document-validity-period-for-certain-categories (last 
visited Oct. 23, 2024).
---------------------------------------------------------------------------

M. Automatic Renewals

    Comment: A commenter urged DHS to consider implementing an 
automatic EAD renewal process for noncitizens with pending asylum 
applications, wherein their EADs would be automatically renewed if the 
asylum application is still pending after a 730-day automatic 
extension. The commenter said that such an automatic process would 
reduce the processing burden for USCIS, while not necessarily requiring 
DHS to forgo fee collection. The commenter stated that automatic 
renewals would not pose a risk that ineligible asylum seekers would be 
incorrectly granted renewals, citing reports that 96.8 percent of 
asylum seekers were approved for work permit renewals in 2020.
    Response: DHS declines to adopt these suggestions. If an EAD were 
to be automatically renewed, under current technological processes and 
systems, USCIS could not issue additional notices because notices are 
associated with the unique receipt number assigned to an individual 
application. An automatic renewal would essentially function as a new 
application without a unique receipt number. Without additional 
documentation from USCIS stating that a renewal EAD application was 
still pending and that the EAD is further extended, it would be 
burdensome and potentially confusing for employers to determine if the 
EAD's validity continued to be extended.
    Consecutive renewals could also potentially require what is 
referred to as backdating of an approval such that any gaps in 
employment authorization are erased, which would run counter to 
Congressional measures regarding unauthorized employment, including the 
accountability of employers that employ noncitizens who are not 
authorized to work in the United States. Also, neither the TFRs nor 
this final rule intend to address periods of unauthorized 
employment.\241\
---------------------------------------------------------------------------

    \241\ See, e.g., the explanation in the 2022 TFR. 87 FR 26630 
(``However, in recognition of Congress' clear intent in the INA 
regarding unauthorized employment, including the accountability of 
employers that employ noncitizens who are not authorized to work in 
the United States, this TFR does not address periods of unauthorized 
employment.'').
---------------------------------------------------------------------------

N. Application, Adjudication, and Notification Processes

1. General Comments on Adjudication and Application Times and 
Prioritization of Reviews
i. EAD Processing Resources and Priorities
    Comment: Several commenters stated that USCIS' processing times 
should be more efficient, suggesting that USCIS assign more resources 
and staff to processing work permit applications. Some of these 
commenters remarked that work permit issuance should be ``first come, 
first serve'' and prioritize individuals whose permits are close to 
expiration.
    Some commenters suggested that USCIS update its data tracking 
system so that it can better track work permit expiration dates. One 
organization suggested that DHS: (1) immediately create a mechanism for 
noncitizen workers to identify themselves to USCIS if their EAD will 
expire in less than 30 days; and (2) build technology to identify and 
adjudicate applications based on their expiration date. The 
organization reasoned that implementing these systems would lead to 
fewer employees losing their work authorization, thereby reducing 
disruptions to the labor force and business operations.
    Response: DHS appreciates the commenter's suggestions on processing 
improvements. As discussed in the 2024 TFR, DHS has allocated 
additional resources to EAD processing, and it is continually seeking 
to improve efficiency in EAD adjudications across categories.\242\ 
Generally, I-765 applications are processed on a ``first-in-first-out'' 
basis, but certain applications may require additional time for review.
---------------------------------------------------------------------------

    \242\ See 89 FR 24628, 24640-24644 (Apr. 8, 2024).
---------------------------------------------------------------------------

    DHS does have capability to track work permit expirations. DHS 
understands the commenter's intent in this regard, consistent with 
suggestions from other commenters, is to use such data to prioritize 
applications for those with expiring EADs on that basis. Diverging from 
general FIFO processing poses substantial technological challenges and 
could lead to unintended consequences such as benefiting filers who 
wait to submit I-765 applications until close to the expiration of 
their underlying EADs at the expense of others who have planned ahead. 
Significant information technology resources required to modify USCIS 
systems in this manner would have to be pulled away from other high 
priority projects. As noted in the 2024 TFR's discussion of 
alternatives,\243\ this option is not operationally feasible.
---------------------------------------------------------------------------

    \243\ See 2024 TFR, 89 FR at 24643.
---------------------------------------------------------------------------

    Operating on a first-in-first-out basis also improves workflow 
predictability and parity across product lines to allow for efficient 
pre-processing of cases, the application of systemic checks, and 
assignment of work to officers. Although renewal applications are 
managed electronically, in the same system that assigns work to 
officers, systems currently do not have the ability to use the expected 
expiration of a previous benefit in order to queue to work on that 
basis. Thus, adjudicating cases based on expiration dates would require 
that they be manually assigned to the adjudicator. Pivoting to a manual 
assignment and dynamic, expiration-date-based case management model 
would reduce adjudicative efficiency as well as unintentionally grant 
preference and

[[Page 101237]]

priority to late filers who would then require manual pre-processing 
review and assessment.
    In summary, the TFRs were intended to help prevent applicants with 
timely filed renewals from losing employment authorization. DHS will 
also continue to explore avenues to decreasing EADs adjudication times 
as described in the preamble of the 2024 TFR.
ii. Decentralizing of EAD Processing and Other Processing 
Recommendations
    Comment: A commenter recommended that USCIS decentralize work 
permit review offices and allow offices to work on applications within 
their State or area. The legal services provider also suggested that 
high-skilled noncitizens should have access to expedited processing and 
remarked that a premium processing service fee could generate revenue 
for USCIS.
    Response: DHS declines to adopt the suggestion that EAD processing 
be decentralized. EAD renewals are primarily processed at USCIS Service 
Centers, which are designed and organized and have the resources to 
adjudicate higher volume applications and petitions that do not require 
in-person interaction with the public. Local offices such as districts 
and field offices typically handle smaller volume filings and are 
geared towards public interaction rather than large-scale processing 
and handling of files.
iii. General Processing
    Comment: A commenter expressed concern that renewal applications 
filed between the expiration of the 2022 TFR and the effective date of 
the 2024 TFR would receive only the 180-day automatic extension 
provided for in the current regulations and would not benefit from a 
longer automatic extension provided by the 2024 TFR.
    A commenter expressed concern that first-time work permit 
applications are processed more quickly than renewals. The commenter 
generally requested more transparency with regard to adjudication 
timelines.
    A commenter recommended that USCIS follow the plain language of 
regulations such as 8 CFR 274a.13(d)(1) and allow noncitizens with TPS 
to stack their Federal Register Notice and 540-day EAD extensions.
    Several commenters asked clarifying questions related to their 
EADs. For example, applicants requested more information about what to 
do if their extension expires or if they qualify for the 2024 TFR 
extension but are not allowed to return to work. A commenter asked if 
their employer could deny the extension of their EAD. Others requested 
more information about how to obtain a letter confirming that their 
permit had been revalidated.
    Response: Regarding the suggestion that renewal applications filed 
between the expiration of the 2022 TFR and the effective date of the 
2024 TFR retroactively receive a 540-day automatic extension, DHS notes 
that the 2024 TFR and this Final Rule provide an automatic extension of 
up to 540 days to eligible renewal EAD applications, including those 
filed between the end of the filing period under the 2022 TFR (October 
27, 2023) and the effective date of the 2024 TFR (April 8, 2024), if 
the renewal EAD application was still pending with USCIS on the date 
the 2024 TFR took effect.
    Furthermore, the validity of TPS-based EADs does not get stacked 
with each different type of EAD automatic extensions. DHS is clarifying 
that the automatic extension of TPS-based EADs under 8 CFR 274a.13(d) 
starts from the expiration date on the face of the EAD.\244\ This is 
so, even if the EAD was also automatically extended under a blanket 
provision in a relevant Federal Register notice. Federal Register 
notices that automatically extend TPS-related EADs identify the EADs 
that get automatically extended by listing the ``Card Expires'' date on 
the face of the EAD. The notice also provides the new validity end date 
of that EAD so that stakeholders do not have to calculate the EAD's new 
expiration date. If the Secretary extends a TPS designation, the 
Federal Register notice announcing the extension will provide the 
specific dates of the re-registration period within which TPS 
beneficiaries must file their Form I-821, Application for Temporary 
Protected Status, to maintain TPS. If a TPS beneficiary files their 
renewal EAD application during their applicable re-registration period, 
their TPS-based EAD is automatically extended under new 8 CFR 
274a.13(d) for up to 540 days from the expiration date on the face of 
the EAD. When completing Form I-9, Employment Eligibility Verification, 
employees who present a TPS-related EAD that has been automatically 
extended may choose either the extended validity period provided by a 
Federal Register notice, if applicable, or the new EAD expiration date 
under this regulation but, as noted above, this final rule does not 
create an entitlement to an automatic extension that exceeds the period 
of a TPS designation. An up to 540-day extension under 8 CFR 274a.13(d) 
does not start from the EAD extension date provided by a Federal 
Register notice.
---------------------------------------------------------------------------

    \244\ See new 8 CFR 274a.13(d).
---------------------------------------------------------------------------

    Regarding what an individual must do if the automatic extension 
expires before they receive their new EAD, employers must reverify 
their employee's employment authorization when their employment 
authorization or documentation expires.\245\ To reverify, employees 
must present any acceptable documentation that shows evidence of 
continued employment authorization. Employees who do not present 
acceptable documentation can no longer be employed.\246\ Regarding 
comments asking whether an employer could deny the extension of their 
EAD, employers cannot reject unexpired acceptable documentation that 
appear to be genuine and relate to the employee.\247\ Employees whose 
unexpired and acceptable documentation--which includes an EAD that has 
been automatically extended by a Form I-797, Notice of Action, 
indicating receipt of a timely-filed renewal EAD application--is 
rejected by their employers may seek redress through IER, which handles 
claims of unfair documentary practices during the Form I-9 
process.\248\ For commenters who requested information about obtaining 
a letter confirming their permit was revalidated, Form I-797C, Notice 
of Action, indicating receipt of a renewal EAD application is the 
document that USCIS sends out to show that an eligible EAD has been 
automatically extended.\249\
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    \245\ See 8 CFR 274a.2(b)(1)(vii).
    \246\ See 8 CFR 274a.2(b)(1)(vii).
    \247\ See 8 CFR 274a.2(b)(1)(ii)(A).
    \248\ See DOJ, Civil Rights Division, Immigrant and Employee 
Rights Section, https://www.justice.gov/crt/immigrant-and-employee-rights-section (last visited Oct. 23, 2024).
    \249\ See 8 CFR 274a.2(b)(1)(vii) and 8 CFR 274a.13(d).
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iv. Notification to Applicants
    Comment: Several commenters recommended that USCIS reissue 540-day 
receipt notices to all eligible applicants who received a 180-day 
receipt notice between October 27, 2023, and April 8, 2024, but who are 
currently eligible for the 540-day extension. Alternatively, these 
commenters proposed that USCIS provide a mechanism for individuals to 
request new receipts as evidence of the longer automatic extension 
period. Similarly, another commenter recommended that USCIS issue 
interim EADs alongside these proposed receipt notices. One of these 
commenters further added that the receipt notices should provide clear 
indication of the dates for which it remains valid.

[[Page 101238]]

    Several commenters recommended that USCIS provide workers with 
receipt notices (I-797C) to function as proof of employment, or that 
USCIS better enforce acceptance of I-797Cs as employment authorization 
among employers. One of the commenters proposed specific language for 
DHS to include in the rulemaking regarding Form I-797C:

    In the event that the agency fails to adjudicate this 
application within 90 days of the receipt notice date, this Form I-
797C will constitute proof of interim employment authorization for 
an additional period of 90 days. For the purposes of I-9 
verification, the applicant may present this Form I-797C, together 
with their expired Employment Authorization Document showing the 
same employment authorization eligibility code, as evidence of 
continued work authorization.

    Several organizational commenters commenting on behalf of their 
individual members requested that USCIS provide standardized 
documentation or some type of written confirmation to noncitizens of 
their work authorization extension to present to employers or 
government agencies. One commenter urged USCIS to send written letters 
of automatic extension to applicants, and to send work authorization 
cards within 180 days of receipt of applications.
    Another commenter requested that USCIS issue Form I-94 and allow 
the form to be used as evidence of employment authorization by 
noncitizens. The commenter clarified that it should be permissible to 
use Form I-94 to prove work authorization under List C #7 from the List 
of Acceptable Documents, ``even if their I-94 could also be considered 
a List A receipt.'' The commenter stated that this change would reduce 
delays caused by human error or mail delays that prevent noncitizens 
from receiving an EAD.
    Response: Given the high volumes of Form I-765 applications, DHS is 
not currently considering redirecting resources to developing new 
processes and documents but will continue to focus efforts on 
increasing efficiency in adjudications and backlog reduction. Further, 
DHS already provides that a Form I-797C, Notice of Action, indicating 
receipt of a Form I-765 that demonstrates the requirements of 8 CFR 
274a.13(d) have been met automatically extends an EAD that is expired 
on its face.\250\ For eligible renewal EAD applicants, under the 2024 
TFR the automatic increase is up to 540 days if (1) the renewal 
application was timely filed on or after October 27, 2023 and was 
pending on or after April 8, 2024 or (2) if the renewal application was 
filed during the 540-day period beginning on or after April 8, 2024, 
and ending September 30, 2025. This final rule is permanently extending 
that automatic extension period to up to 540 days for eligible EAD 
renewal applicants.
---------------------------------------------------------------------------

    \250\ See DHS, USCIS, Automatic Employment Authorization 
Document (EAD) Extension (last reviewed/updated Oct. 9, 2024), 
https://www.uscis.gov/eadautoextend (last visited Oct. 23, 2024); 
DHS, USCIS, M-274 Handbook for Employers, Section 5 Temporary 
Increase of Automatic Extension of EADs from 180 Days to 540 Days 
(last reviewed/updated Apr. 8, 2024), https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274/50-automatic-extensions-of-employment-authorization-andor-employment-authorization-documents-eads-in (last visited Oct. 23, 2024).
---------------------------------------------------------------------------

    Forms I-797C (receipt notices) for EAD renewal applicants have 
standardized language regarding the automatic extension, and when 
combined with the facially expired EAD, is acceptable documentation for 
Form I-9, Employment Eligibility Verification, purposes that can be 
presented to employers or government agencies showing employment 
authorization. DHS is revising language on the Forms I-797C to more 
clearly describe the eligibility requirements for this automatic EAD 
extension. The changes DHS is making in this rule to permanently 
increase employment authorization and/or EAD validity for up to 540 
days is greater than the 90 days the commenter is suggesting, so it 
provides employers and employees with more stability and reduces the 
need for employers to reverify or update their Forms I-9.
    Some Forms I-94, Arrival-Departure Record, which are documents 
issued by DHS, are already acceptable as a List C document that shows 
employment authorization.\251\ However, for various reasons depending 
on the classification, not all Forms I-94 are acceptable for Form I-9 
purposes and DHS is not currently considering revising the lists of 
documents that are acceptable for Form I-9 completion.
---------------------------------------------------------------------------

    \251\ 8 CFR 274a.2(b)(1)(v)(C)(7) and DHS, USCIS, M-274 Handbook 
for Employers, Section 13.3 List C Documents That Establish 
Employment Authorization (last reviewed/updated Mar. 8, 2024), 
https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274/130-acceptable-documents-for-verifying-employment-authorization-and-identity/133-list-c-documents-that-establish-employment-authorization (last visited Oct. 23, 2024).
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v. Suggestions To Improve USCIS' Systems or Applicant-USCIS 
Communication
    Comment: Commenters recommended that an automated system be created 
to process and issue work permit applications or renewal requests. Some 
commenters urged USCIS to expand categories eligible for electronic 
filing of applications, to allow electronic filing of fee waiver 
requests; another commenter specifically requested that USCIS accept 
electronic filings for applications submitted with fee waivers.
    In response to a question in the preamble to the 2024 TFR (``Should 
DHS consider other solutions to mitigate the risk of expiring 
employment authorization and/or EAD validity for some or all applicants 
covered by the automatic extension provision?''), a commenter urged DHS 
to modernize its systems and automate processes such that noncitizens 
can have insight into their application or case statuses and can review 
actions needed on their part. Likewise, another commenter encouraged 
USCIS to streamline its processing of EAD renewals by digitizing Form 
I-765 and beginning adjudication for noncitizens as soon as they are 
admitted into the United States and allowing noncitizens to access 
their status via an online portal.
    Similarly, a few commenters urged USCIS to implement a mechanism by 
which individuals with potential gaps in work authorization can alert 
USCIS and request expedited processing. A commenter added that USCIS 
could also consider a system for employers, applicants, and agencies to 
look up authorization confirmation for noncitizen employees.
    Response: DHS declines to adopt the suggestion that an automated 
system be created to adjudicate EAD categories for which applicants are 
regulatorily mandated to apply. Each application must be reviewed to 
ensure that the basis for an EAD continues to exist. While USCIS does 
use electronic systems to streamline adjudicative processes to the 
maximum extent possible, applications that are incomplete or contain 
discrepancies require additional officer review and consideration to 
determine if a request for evidence or other action is required 
irrespective of the application's intake via paper or electronic means. 
Efforts to allow online filing of fee waivers are being considered.
    Regarding the suggestion that DHS systems be modernized and 
automated so that applicants can review any action that is required of 
them, USCIS maintains a system that allows noncitizens to check the 
status of their application via its Case Status Online web page.\252\ 
While the system will display whether action from the applicant is 
required such as when

[[Page 101239]]

USCIS issues a Request for Evidence, the system does not have the 
capacity to list specific items or information that might be needed to 
complete the adjudication.
---------------------------------------------------------------------------

    \252\ See DHS, USCIS, Case Status Online, https://egov.uscis.gov 
(last visited Aug. 1, 2024).
---------------------------------------------------------------------------

    DHS notes that noncitizens who wish to request that an application 
be expedited may do so online through the USCIS website.\253\ Also, 
USCIS already allows electronic filing of certain categories of Form I-
765, Application for employment Authorization through myUSCIS to 
include most student categories, initial and renewal (c)(8) applicants, 
and TPS applicants seeking employment authorization.\254\ Additionally, 
USCIS recently launched PDF intake for a number of EAD categories, 
which allows applicants to upload a completed Form I-765 and supporting 
evidence in PDF format. This process makes online filing simpler, is 
available to more filing categories, and is particularly beneficial for 
representatives who use external software to enter and manage client 
cases. DHS also manages and administers E-Verify, which allows 
participating employers to electronically confirm the employment 
eligibility of their newly hired employees.\255\
---------------------------------------------------------------------------

    \253\ See DHS, USCIS, Expedite Requests, https://www.uscis.gov/forms/filing-guidance/expedite-requests (last visited Aug. 1, 2024).
    \254\ See DHS, USCIS, Forms Available to File Online, https://www.uscis.gov/file-online/forms-available-to-file-online (last 
visited Aug. 1, 2024).
    \255\ See DHS, USCIS, E-Verify (last updated June 2, 2023), 
https://www.e-verify.gov (last visited Oct. 23, 2024).
---------------------------------------------------------------------------

2. Transparency, Clarity, and Outreach to External Stakeholders
    Comment: Some commenters expressed support for the rulemaking but 
encouraged USCIS to expand its outreach. For instance, an advocacy 
group expressed support for the 2024 TFR and urged USCIS to make it 
permanent but recommend that USCIS conduct outreach initiatives to 
ensure state employees are thoroughly educated on the TFR and its 
implications for providing state benefits. The commenter expressed that 
State employees' lack of familiarity with the TFR could result in 
unnecessary delays in processing requests for state-issued documents, 
stating that for example most DMV locations are unfamiliar with 
immigration processes and visa categories and staff often do not have 
the time to learn these procedures ``on the spot'' while a customer is 
standing at the counter. The commenter further stated that noncitizens 
rely heavily on Federal documents, including valid EADs, to access 
State identification cards, driver's licenses, and other State 
benefits. The commenter added that employees might need additional time 
to verify USCIS EAD policies online, consult with supervisors, or seek 
clarifications, prolonging processes and creating bureaucratic hurdles 
for applicants. The commenter recommended that USCIS issue a memorandum 
to state agencies explaining the automatic extension and its relevance 
to state operations in the DMV context. The comment further recommended 
that USCIS provide a letter addressed to each beneficiary of the 
automatic extension stating that their facially expired EAD card has 
been automatically extended for a specified period while their renewal 
application is being adjudicated. The commenter stated that this 
information could be included in the I-765 Receipt Notice to enhance 
efficiency, and that the individualized letter or Notice having this 
declaration coupled with the expired EAD card may reduce the confusion 
and delays noncitizens may face at the DMV.
    This commenter and other commenters proposed the following 
suggestions to improve clarity and avoid confusion among DMVs, 
employers, and noncitizens:
     Conduct outreach initiatives to ensure State Department of 
Motor Vehicles (DMVs) and all State employees are educated on the TFR 
and its implications for providing State benefits;
     Ensure any blanket extensions of EAD status are 
immediately reflected in the SAVE system so that States may ensure 
eligibility and legal services determinations are made appropriately 
and based on valid verification methods;
     Implement a robust public awareness campaign to educate 
employers about the TFRs, including the prohibitions against any 
employment discrimination that may result from confusion around EAD 
extensions;
     Provide robust guidance for employers to ensure that 
automatic extension periods are honored, including physical copies of 
guidance as well as a regularly updated website where employers can 
seek answers;
     Conduct public engagements with associations of human 
resources staff, as well as professional employment organizations, 
concerning the up to 540-day automatic extension;
     Amend Form I-9, Employment Eligibility Verification, and 
provide detailed guidelines regarding the TFRs in the I-9 process;
     Continue DHS's ``Stakeholder Invitations'' and 
``Stakeholder Messages;''
     Update the USCIS Calculator and USCIS website; and
     Simplify and improve USCIS resources about the automatic 
extension.
    Response: DHS is aware of the ongoing challenges for DMVs, other 
benefit granting/license issuing agencies, and employers recognizing 
that a facially expired EAD has been automatically extended if all of 
the requirements are met. DHS has made changes in this rule to even 
more clearly explain when the automatic extension applies, and how to 
count the days associated with that extension.
    SAVE verifies EAD expiration dates that are automatically extended 
under this rule and encourages user agencies, including DMVs, to 
continue to submit verification requests to obtain this information. 
USCIS continues to review ways to improve the process to verify the 
immigration status and employment eligibility of applicants whose 
automatically extended EADs are facially expired, when appropriate. 
This includes making any necessary updates to USCIS source systems to 
better track the automatic extension dates, providing revised receipt 
notices regarding eligibility for automatic extensions, and ensuring 
updated information is available to both SAVE and E-Verify which are 
not source systems.
    As noted above, USCIS is also revising receipt notice language to 
more clearly describe the eligibility requirements for this automatic 
EAD extension. USCIS is also considering ways to tailor the Form I-797C 
with existing source system information, such that only individuals who 
may be eligible for an automatic EAD extension based on the category of 
their renewal application receive a notice that describes eligibility 
requirements for the automatic extension.
    USCIS also intends to provide robust communications and engagements 
to address these concerns. SAVE and E-Verify continue to engage with 
benefit-granting agencies and employers on updates to USCIS policies 
and procedures as they are published, including web page updates, 
stakeholder engagements and communications sent via email. On July 24, 
2024, USCIS significantly expanded one of its web pages to clearly 
delineate the requirements and eligibility for an automatic EAD 
extension at https://www.uscis.gov/eadautoextend, which includes an 
extensive 540-day automatic extension calculator.

[[Page 101240]]

    While the Form I-9, Employment Eligibility Verification, and its 
instructions will not require revision because of this rulemaking, 
USCIS intends to make corresponding updates clarifying existing TFR 
guidance in the M-274, Handbook for Employers, and on I-9 Central, as 
needed, to help employers determine whether an employee is eligible for 
the automatic extension of up to 540 days provided in this rulemaking. 
USCIS may also clarify existing guidance in the M-274 on how employers 
should complete the current Form I-9 for those employees whose EADs 
have been automatically extended for up to 540 days through this 
rulemaking. USCIS has already published updates to the calculator at 
https://www.uscis.gov/eadautoextend to provide clearer guidance and 
information about eligibility for automatic extensions of employment 
authorization and/or the EAD.
    Comment: While commending USCIS for its efforts to reduce the 
backlog in caseload and improve the timeliness of the legal presence 
verification requests associated with driver's license transactions, a 
commenter expressed general concern regarding the SAVE system that 
state driver's license agencies use to verify a noncitizen's legal 
presence prior to conferring the benefit of a REAL ID-compliant 
driver's license.\256\ The commenter stated that although USCIS is 
making improvements to the SAVE system, many cases presented to front-
line motor vehicle service clerks require additional verifications that 
cannot be verified at the time of transaction. Manual verification by 
SAVE (also called ``additional verification'') can require applicants 
to revisit service locations to repeat transactions and disrupt the 
ability of the states to serve other customers as they explain the need 
for additional verification.
---------------------------------------------------------------------------

    \256\ The REAL ID Act and regulations require States to verify 
documents and information presented by applicant for a REAL ID 
compliant driver's license or identification card. REAL ID Act of 
2005, as amended, Public Law 109-13, div. B, Title II, Sec. 
202(c)(4)(A) (May 11, 2005) and 6 CFR 37.13(b). States must verify 
documents issued by DHS through SAVE or alternate methods approved 
by DHS, except that if two DHS-issued documents are presented, a 
SAVE verification of one document that confirms lawful status does 
not need to be repeated for the second document. 6 CFR 37.13(b)(1). 
In the event of a non-match, the DMV must not issue a REAL ID 
driver's license or identification card to an applicant and must 
refer the individual to USCIS for resolution. Sec.  37.13(b)(1).
---------------------------------------------------------------------------

    With respect to the 2024 TFR in particular, the commenter stated 
that automatic extensions pose difficulties for state driver's license 
agencies. The commenter stated that blanket extensions of documents 
displaying an expiration date that has already passed confuses the 
legitimacy of the documentation that driver's license applicants must 
present to show they meet the federal requirements for issuance of REAL 
ID-compliant driver's licenses. The commenter explained that for 
temporary driver's licenses, states must tie the validity period to the 
applicant's authorized period of stay in the United States.\257\ The 
commenter stated that if the EAD document is expired on its face and 
the SAVE response does not verify the automatic extension of 
immigration status in real time, it becomes difficult for a state 
agency to issue the driver's license because the agency does not have 
the proper expiration date information. The commenter stated that the 
resulting inability to verify a driver's license applicant's legal 
status causes states to turn away otherwise eligible constituents and 
results in processing delays for customers of state driver's license 
agencies. The commenter also stated that reliance on paper products, 
including EADs, presents a security risk as they are easily manipulated 
or faked, and may present unverifiable data. The commenter stated that 
unless SAVE returns present, real-time verifiable data on all EADs, the 
proliferation of security risks to the states remains a possibility.
---------------------------------------------------------------------------

    \257\ REAL ID Act 202(c)(2)(C) and 6 CFR 37.21.
---------------------------------------------------------------------------

    The commenter further expressed that the increase in the automatic 
extension period from up to 180 days to up to 540 days was significant 
and that an extension of this magnitude makes tracking documentation 
associated with case files more laborious and widespread with a greater 
potential impact to a larger demographic. The commenter also stated 
that the increase may amount to an increased workload for USCIS and 
dilute the availability of good data at an individual case level. The 
commenter asked that USCIS ensure that any blanket extension of legal 
status eligibility is immediately reflected in the SAVE system so that 
states may ensure eligibility and legal service determinations are made 
appropriately and based on valid verification methods.
    Response: Although general concerns about SAVE are outside the 
scope of this rulemaking, USCIS acknowledges the importance of SAVE 
returning accurate information in real time, without requiring 
additional verification. SAVE verifies EAD expiration dates that are 
automatically extended under this rule at initial verification or 
additional verification when an automated response is not available. 
SAVE encourages user agencies, including DMVs, to continue to submit 
verification requests to obtain this information. In FY 2024, SAVE 
provided a citizenship or immigration status response in 87% of the 
requests submitted at initial verification without requiring manual 
verification. In the limited situations where SAVE is unable to provide 
a response at initial verification, including where confirmation of an 
EAD automatic extension is not passed to SAVE by source systems, SAVE 
may not provide this information at initial verification in automated 
response. In situations where additional verification is required, user 
agencies must submit a request for additional verification so that SAVE 
can manually review the individual's immigration record and provide 
confirmation of any EAD automatic extension.
    USCIS will continue to review ways to improve the process to verify 
the immigration status and employment eligibility of applicants whose 
automatically extended EADs are facially expired, when appropriate. 
Solutions may include making updates to USCIS source systems to better 
ensure accuracy of SAVE responses using information from an 
automatically extended EAD. Updates to USCIS source systems would help 
support SAVE's ability to accurately verify a benefit applicant's 
immigration status and employment authorization expiration date during 
the initial step, potentially reducing the need for user agencies such 
as state driver's license agencies to submit a request for additional 
verification. As noted above, USCIS is also revising receipt notice 
language to more clearly describe the eligibility requirements for this 
automatic EAD extension and considering the feasibility of tailoring 
the Form I-797C with existing source system information.
    As it relates to the effects of this rule in particular, this rule 
does not require state driver's license agencies to engage in 
additional SAVE queries. In fact, because this rule opts for an up-to-
540-day automatic extension instead of an up-to-180-day automatic 
extension, the rule could reduce the frequency with which certain 
driver's licenses expire and reduce the frequency with which states 
must run SAVE queries to verify legal presence information. The rule 
could also reduce confusion about the length of automatic extensions: 
instead of having a baseline automatic extension of 180 days and then 
periodic TFRs with longer extensions, this rule takes a more uniform 
approach. In addition, this rule also does not result in an increase in 
the need for additional verification in SAVE. To whatever

[[Page 101241]]

extent SAVE queries require additional verification in cases involving 
automatic EAD extensions, they would occur under the up-to-180-day 
automatic extension as well.
    Regarding the comment that there are security risks associated with 
reliance on easily manipulated or faked data, or data that is 
unverifiable, DHS notes that the EAD remains the document that benefit-
granting agencies may accept to verify immigration status using SAVE. 
The EAD is a secure document with state-of-the-art technology and 
security features.\258\ The Form I-797C, Notice of Action, indicating 
receipt of a renewal EAD application, has sufficient identifying 
information including the applicant's name and eligibility category, to 
tie it to the eligible EAD that is being automatically extended. This 
Form I-797C is the mechanism that automatically extends the validity of 
the secure EAD. In addition, as noted, DHS is not introducing a new 
automatic extension; rather, DHS is increasing the duration of the 
codified automatic extension, which already calls for the use of an 
expired EAD with a timely-filed renewal EAD application Form I-797C 
notice as evidence that an eligible EAD has been automatically 
extended. States use SAVE to verify the validity period of an EAD to 
meet REAL ID requirements.\259\
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    \258\ See DHS, USCIS, USCIS Redesigns Green Card and Employment 
Authorization Document (Jan. 30, 2023), https://www.uscis.gov/newsroom/news-releases/uscis-redesigns-green-card-and-employment-authorization-document (last reviewed Nov. 6, 2024).
    \259\ 6 CFR 37.13(b)(1).
---------------------------------------------------------------------------

    USCIS agrees that clarity regarding the length and applicability of 
automatic extensions is important. DHS is aware of the ongoing 
difficulties in determining when a facially expired EAD has been 
automatically extended and has ensured that this final rule clearly 
delineates these requirements. In addition, this rule may reduce 
confusion about the length of automatic extensions: instead of having a 
baseline automatic extension of 180 days and then periodic TFRs with 
longer extensions, this rule takes a more uniform approach. USCIS is 
also revising receipt notice language to provide more clarity to 
individuals who are eligible for an automatic extension, their 
employers, and benefit-granting agencies who review their 
documentation.
    On July 24, 2024, USCIS updated its website to more clearly outline 
the requirements for an automatic EAD extension. As part of these 
changes, USCIS updated the automatic extension eligibility calculator. 
USCIS believes the clarification made available on its website and to 
the calculator at https://www.uscis.gov/eadautoextend may help 
individuals with an automatically extended EAD and a Form I-797C 
demonstrate this extension to agencies and employers tasked with 
verifying immigration status and employment eligibility if there is 
confusion when the individual presents a facially expired EAD. The EAD 
calculator is not a substitute for a registered agency's use of SAVE.
    DHS disagrees with the commenter's concern that it will become more 
laborious for USCIS to track employment authorization or that this rule 
will dilute good data at the case level. While DHS acknowledges that 
there is work to do to improve the ability of DHS processes and systems 
to verify and provide accurate immigration status information, DHS is 
working on those improvements, which will reduce the number of 
applications that remain pending and eligible for automatic extensions. 
It remains DHS's goal to eliminate the adjudicative backlog for the EAD 
categories eligible for the up-to 540-day automatic extension, and DHS 
will continue to work toward that goal. Making the increase to the 
automatic extension period permanent is not an attempt to carry a 
permanent backlog; rather, it reflects DHS's recognition that 
unforeseeable circumstances may arise that periodically and temporarily 
cause backlogs. As for data at an individual case level, the 
commenter's concern is unclear, but DHS believes data will remain 
available and sufficient for tracking purposes. DHS will remain able to 
track the total number of applications filed, the EAD categories under 
which they are filed, and the number of applications that remain 
pending, among other metrics.
3. Alternative Actions
    Comment: Multiple submissions recommended actions to pursue as 
alternatives to, or in conjunction with, the 2024 TFR. Commenters 
suggested that DHS consider all options to eliminate barriers to 
obtaining and retaining employment authorization for noncitizens; 
conduct a ``root cause analysis'' for work authorization delays; and 
consider expanding the categories for which work authorization could be 
granted incident to status.
    Another commenter expressed support for measures that would allow 
noncitizens to apply for an EAD based on a pending asylum application 
earlier than currently allowed under 8 CFR 208.7(a). Another commenter 
recommended that DHS eliminate the asylum clock entirely and grant 
(c)(8) EADs 180 days after receipt of the asylum application. The 
commenter remarked that the asylum clock is unfair to noncitizens, as 
well as an unnecessary use of USCIS resources, which would be better 
spent on substantive adjudications rather than on administering the EAD 
clock.
    Another commenter emphasized that if Congress were to transition 
USCIS from an agency that is primarily fee-funded to one that 
supplements its revenue via appropriations, USCIS could increase and 
improve its resources and operate under better conditions, which would 
enable USCIS to timely process pending renewal EAD applications.
    Response: Although some of these proposals may further or be 
related to the overarching goals identified in the 2024 TFR, many of 
them are far afield from the specific proposals DHS included in the 
2024 TFR. Consistent with the 2024 TFR, DHS has decided to 
``permanently lengthen the period of the automatic extension period to 
up to 540 days for employment authorization and/or EAD validity for 
eligible renewal applicants.'' \260\ DHS has nonetheless reviewed 
comments suggesting additional further actions, and may pursue such 
changes on a regulatory or subregulatory basis in the future.
---------------------------------------------------------------------------

    \260\ See 2024 TFR, 89 FR at 24628.
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    DHS notes that the 180-day waiting period for the asylum clock is 
statutory,\261\ and would require Congressional action to eliminate it 
entirely. Similarly, changes to funding mechanisms for USCIS would be 
in the province of Congress.
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    \261\ See INA sec. 208(d)(2), 8 U.S.C. 1158(d)(2).
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    Comment: A commenter recommended that DHS streamline Form I-765, 
Application for Employment Authorization, to reduce confusion and 
delays for applicants and increase review efficiency for USCIS. The 
commenter suggested accepting the shorter 2017 version of the form. The 
legal services provider added that some questions on the current 
iteration of the form are not necessary to adjudicate work permit 
eligibility.
    Response: USCIS periodically reviews all its forms, including the 
Form I-765, for legal sufficiency, accuracy, and to ensure that only 
the information necessary for adjudicating the form is being collected. 
All of USCIS' forms are reviewed by the Office of Management and Budget 
(OMB) to ensure compliance with these factors. The Form I-765 was most 
recently modified by USCIS and approved by OMB on August 23,

[[Page 101242]]

2024.\262\ While it is possible that not all of the questions on Form 
I-765 apply to every applicant, every question on the form is 
necessary.
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    \262\ See Executive Office of the President, Office of 
Management and Budget, Office of Information and Regulatory Affairs, 
Information Collection Review--OIRA Conclusion Ref. No. 202408-1615-
005, https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=202408-1615-005 (last visited on Oct. 23, 2024).
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    Regarding the possibility of confusion, USCIS publishes detailed 
guidance on Form I-765 on its website at www.uscis.gov/i-765. This 
includes resources such as filing tips, checklists, a fee calculator, 
and other useful information.
    Comment: A legal services provider suggested ways DHS and USCIS may 
make the public comment process for future rules more accessible, 
including by translating requests for comment into multiple languages 
and accepting comments in languages other than English. The commenter 
stated that this would be consistent with USCIS' mission statement of 
``uphold[ing] America's promise as a nation of welcome and possibility 
with fairness, integrity, and respect for all we serve'' \263\ and 
DHS's Language Access Plan.\264\
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    \263\ DHS, USCIS, Mission and Core Values, https://www.uscis.gov/about-us/mission-and-core-values (last visited on Oct. 
28, 2024).
    \264\ DHS, Language Access Plan (Nov. 2023), https://www.dhs.gov/sites/default/files/2023-11/23_1115_dhs_updated-language-access-plan.pdf (last visited on Oct. 28, 2024).
---------------------------------------------------------------------------

    Response: The process of submitting comments to future Federal 
Register documents is beyond the scope of this rule. Information about 
language access efforts at USCIS can be found at the USCIS Language 
Access Plan web page \265\ and at the USCIS Multilingual Resource 
Center.\266\
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    \265\ DHS, USCIS, USCIS Language Access Plan, https://www.uscis.gov/tools/multilingual-resource-center/uscis-language-access-plan (last updated Apr. 14, 2024).
    \266\ DHS, USCIS, Multilingual Resource Center https://www.uscis.gov/tools/multilingual-resource-center (last visited Oct. 
28, 2024).
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4. Regulatory Impact Analysis
    Comment: A commenter provided remarks on the economic impacts of 
the TFR, in line with the impacts described in the TFR's Regulatory 
Impact Analysis (RIA), stating that the TFR would stabilize labor 
income for affected renewal EAD applications while creating 
opportunities.\267\ The commenter said that the TFR would serve as a 
``proxy'' for preventing transfers from EAD holders to others in the 
workforce or yielding cost savings for employers as a result of 
preserved productivity and continuity of business operations. The 
commenter additionally remarked on the ``significant'' potential 
financial benefits of the rule, including DHS's estimate of $3.1 
billion in potential preserved employment taxes.
---------------------------------------------------------------------------

    \267\ See Table 3--Summary of Impacts, 2024 TFR, 89 FR at 24655-
24656.
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    The commenter added that the ability to maintain employment 
authorization without disruption would benefit individuals, with 
estimated savings based on recently lapsed EADs and labor earnings. The 
commenter wrote that impacted individuals would benefit from cost 
savings related to job search and acquisition, and stabilized earnings 
would prevent burdens on support networks.
    Finally, the commenter concluded that the TFR would not cause 
adverse labor market disruptions and would prevent adverse impacts from 
wide-scale lapses in employment authorization. The commenter said that 
while the TFR's RIA did not include estimates for stabilized earnings 
beyond the EAD lapse duration, they expressed confidence that they 
would show increased saved earnings estimates.
    Response: The estimated EAD lapse duration was based on an 
expectation of conditions should the EAD renewal automatic extension 
not be extended to up to 540 days. The TFR's RIA estimated costs in 
absence of the rule, which is why it did not include estimates for 
stabilized earnings beyond the estimated EAD lapse duration.

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

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

    With this final rule, DHS is amending 8 CFR 274a.2(b)(1)(vii) by 
removing the numerical reference to the up to 180-day period and 
replacing it with language that simply refers to the automatically 
extended validity period under 8 CFR 274a.13(d). This rule does not 
modify the current reverification requirements an employer must follow 
for Form I-9, Employment Eligibility Verification, at 8 CFR 
274a.2(b)(1)(vii) that apply to automatic extensions. Therefore, to 
complete Form I-9 for new employment, the employee and employer should 
use the extended expiration date to complete Sections 1 and 2 of the 
Form I-9 and reverify once the automatic extension period expires. For 
current employment, the employer should update the previously completed 
Form I-9 to reflect the extended expiration date based on the automatic 
EAD extension while the renewal is pending and reverify once the 
automatic extension expires.\268\
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    \268\ DHS, USCIS, M-274, Handbook for Employers, 5.2 Temporary 
Increase of Automatic Extension of EADs from 180 Days to 540 Days 
(last reviewed/updated Apr. 8, 2024), https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274/50-automatic-extensions-of-employment-authorization-andor-employment-authorization-documents-eads-in/52-temporary-increase-of-automatic-extension-of-eads-from-180-days-to-540-days (last visited Aug. 4, 
2024).
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    DHS is also modifying the cross references to 8 CFR 274a.13(d) in 
this section by eliminating the section symbol before 274a.13(d) in 
that paragraph, and replacing the citation with the full citation, 
i.e., 8 CFR 274a.13(d). DHS believes that using full citations in 
regulatory text clarifies the regulatory text for the public.

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

    With this final rule, DHS is permanently increasing the automatic 
extension period for employment authorization and/or EAD validity, 
which is up to 180 days in the current 8 CFR 274a.13(d)(1), to a period 
of up to 540 days. The extension will be available to renewal 
applicants who are eligible to receive an automatic extension and who 
properly file a renewal EAD application on or after January 13, 2025 
and otherwise meet the requirements of 8 CFR 274a.13(d).
    DHS also acknowledges that the requirements under this provision 
are complicated and have caused confusion among some employees, 
employers, and benefit-granting agencies in the years since these 
provisions have been in effect as to whether the automatic extension 
only applies to documents about to expire or also to expired documents. 
To address this concern, DHS is amending 8 CFR 274a.13(d)(1) to specify 
that for eligible renewal EAD applications, both EADs with validity 
periods that are about to expire (``expiring'') and those with validity 
periods that have already passed (``expired'') can be automatically 
extended \269\ as long as all the requirements of 8 CFR 274a.13(d)(1) 
are met. Under the current 8 CFR 274a.13(d)(1), one of the requirements 
is having a properly filed renewal EAD application that USCIS received 
before the expiration date on the face of the EAD, or for TPS-related 
renewal EAD applications, during the filing period described in the 
applicable Federal Register notice regarding procedures for obtaining 
TPS-related EADs.\270\ DHS is amending 8 CFR 274a.13(d)(1)(i) to

[[Page 101243]]

clarify that for renewal of TPS-related EADs, the automatic EAD 
extension provision applies to individuals who file their renewal EAD 
application during the re-registration period described in the 
applicable Federal Register notice. As explained in the preamble to the 
AC21 Final Rule,\271\ this means that the TPS-related renewal EAD 
application can be filed after the facial expiration date of the EAD 
because the re-registration period may extend beyond the validity 
period of the EAD as indicated on the face of the document.\272\
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    \269\ See new 8 CFR 274a.13(d)(1).
    \270\ See current 8 CFR 274a.13(d)(1)(i).
    \271\ See 81 FR 82398, 82455 (Nov. 18, 2016).
    \272\ See new 8 CFR 274a.13(d)(1)(i).
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    DHS anticipates that this clarification in the regulatory text will 
better guard against a circumstance where an employer or benefit-
granting agency rejects an EAD that is the subject of a valid automatic 
extension, if presented with an eligible Form I-797C receipt notice. 
This should help employers avoid rejecting acceptable documents and 
possibly violating the anti-discrimination provisions under 274B of the 
INA, 8 U.S.C. 1324b.\273\
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    \273\ See INA 274B(a)(6), 8 U.S.C. 1324b(a)(6).
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    In conjunction with this change, DHS is making another clarifying 
change, by further amending 8 CFR 274a.13(d)(1) to state exactly when 
the automatic extension begins. Specifically, the amendment clarifies 
that the first day of the up to 540-day automatic extension is the day 
after the expiration date on the face of the EAD. This change will help 
stakeholders know where to find the expiration date information and 
when to begin calculating the new EAD validity end date.\274\ As 
indicated in comments to the 2024 TFR, some stakeholders have expressed 
confusion regarding multiple possible automatic EAD extensions. This 
amendment clarifies that the up to 540-day extension begins on the day 
after the expiration date indicated on the face of the EAD. To 
accommodate the new wording, DHS is also moving information related to 
filing the renewal request into 8 CFR 274a.13(d)(1)(i).
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    \274\ See new 8 CFR 274a.13(d)(1).
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    Finally, to avoid confusion, and to ensure continued availability 
of the temporary extension granted in the 2022 and 2024 TFRs, DHS is 
incorporating and consolidating the content of temporary paragraphs 
(d)(5) and (d)(6) into (d)(1) and removing paragraphs (d)(5) and 
(d)(6).
    Eligible applicants who had a properly filed and adjudicated 
renewal EAD application before May 4, 2022, had their employment 
authorization and/or EAD automatically extended for a period not to 
exceed 180 days. DHS amended the regulatory text so that paragraph 
(d)(1) continues to reflect this period, and to ensure clarity for Form 
I-9, Employment Eligibility Verification, purposes.\275\
---------------------------------------------------------------------------

    \275\ See 8 CFR 274a.13(d)(5).
---------------------------------------------------------------------------

    As described in the 2022 TFR, 8 CFR 274a.13(d)(5) provided an 
increased extension period of up to 540 days to eligible renewal 
applicants who had a timely filed EAD application pending during an 18-
month period beginning on or after May 4, 2022, and ending at the end 
of October 26, 2023. The increased automatic extension period applied 
to eligible renewal EAD applicants who timely filed their EAD 
applications on or before the last day of the 18-month period.\276\ 
Additionally, for eligible renewal EAD applicants who had timely filed 
their renewal EAD applications on or before May 4, 2022, but who were 
no longer within their 180-day automatic extension period, 8 CFR 
274a.13(d)(5) provided, in the interest of fairness, that such renewal 
applicants automatically resumed employment authorization and/or the 
validity of their EADs beginning on the effective date of the 2022 TFR, 
May 4, 2022, and up to 540 days from the expiration of their employment 
authorization and/or EAD.\277\ For renewal applications filed on or 
after October 27, 2023, the automatic extension period reverted to 180-
days.
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    \276\ See 8 CFR 274a.13(d)(5); 87 FR 26614, 26631 (May 4, 2022).
    \277\ See 8 CFR 274a.13(d)(5); 2022 TFR, at 87 FR 26614, 26631 
(May 4, 2022).
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    Because of continuing delays in adjudication, DHS published another 
temporary final rule on April 8, 2024, to avert possible and imminent 
harm to a large number of renewal EAD applicants.\278\ Rather than 
extending the automatic extension provision of paragraph (d)(5), DHS 
created new 8 CFR 274a.13(d)(6). Under this provision, DHS increased 
the automatic extension period for employment authorization and/or EAD 
validity of up to 180 days to a period of up to 540 days for renewal 
applicants eligible to receive an automatic extension who properly 
filed a renewal EAD application on or after October 27, 2023, and 
pending on or after April 8, 2024 and any eligible applicant who files 
a renewal EAD application during the 540-day period beginning on or 
after April 8, 2024 and ending September 30, 2025. As described in the 
2024 TFR, and absent this rulemaking, the automatic extension of 
employment authorization and/or EAD validity would have reverted to the 
up to 180-day period for those eligible applicants who would have 
timely filed renewal EAD applications after September 30, 2025.\279\
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    \278\ DHS estimated at the time that without the 2024 TFR, 
approximately 800,000 renewal EAD applicants would have been in 
danger of having their applications remain pending beyond the 180-
day automatic extension period, resulting in applicants losing 
employment authorization and/or EAD validity in the approximately 2-
year period beginning May 2024 because of USCIS processing delays 
and through no fault of their own. See 89 FR 24628, 26828 (Apr. 8, 
2024).
    \279\ See 89 FR 24628, 24649 (Apr. 8, 2024).
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    Because DHS has determined that there is a need to permanently 
increase the automatic extension period to up to 540 days going 
forward, and because maintaining multiple overlapping automatic 
extension periods in the regulations is confusing to the public, DHS 
believes it is best to simplify the regulatory text. DHS has determined 
that it would be best to incorporate the content of paragraphs (d)(5) 
and (d)(6) into paragraph (d)(1), and that paragraphs (d)(5) and (d)(6) 
should be removed from the CFR. This approach reduces, and thus, 
simplifies the regulatory text while maintaining the 2022 and 2024 TFR 
principles applicable to the automatic extension for certain renewal 
EADs for the public and for purposes of Form I-9 requirements. 
Correspondingly, new 8 CFR 274a.13(d)(1) incorporates the automatic 
extensions provided by the 2022 TFR in 8 CFR 274a.13(d)(5) and the 2024 
TFR in 8 CFR 274a.13(d)(6) by clearly outlining that for renewal 
applications pending on May 4, 2022 or properly filed on or after May 
4, 2022, the validity period of an expiring employment authorization 
and/or EAD is automatically extended for an additional period not to 
exceed 540 days from the expiration date on the face of the EAD. The 
amendments are effective on January 13, 2025.
    In the 2022 and 2024 TFRs, DHS provided that 8 CFR 274a.13(d)(5) 
and (d)(6) would remain in the CFR for an additional 720 days after the 
540-day period. Therefore, 8 CFR 274a.13(d)(5) was scheduled to remain 
in the CFR until October 15, 2025,\280\ and 8 CFR 274a.13(d)(6) was 
scheduled to remain in the CFR until September 20, 2027.\281\ DHS 
previously decided to retain the provisions for that length to ensure 
that renewal applicants who are already within their up to 540-day 
extension period as of the end of the effective date of the provisions, 
would not get cut off from any remaining employment authorization and/
or EAD validity that is over 180 days, but instead, would be

[[Page 101244]]

able to take full advantage of the 540-day period.\282\ By 
incorporating the content of paragraphs (d)(5) and (d)(6) into (d)(1), 
there is no longer a need for the provisions to be in the CFR for that 
length of time. In fact, DHS believes that having multiple overlapping 
provisions likely will create additional confusion. Therefore, 8 CFR 
274a.13(d)(5) and (d)(6) will be removed as of January 13, 2025. DHS is 
also clarifying the abbreviation EAD used in (d)(1)(i).
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    \280\ See 87 FR 26614, 26631 (May 4, 2022).
    \281\ See 89 FR 24628, 24649 (May 4, 2022).
    \282\ See 87 FR 26614, 26631 (May 4, 2022); see 89 FR 24628, 
24649 (Apr. 8, 2024).
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    Notwithstanding the decision to consolidate these three provisions 
for clarity, as discussed in Part I.D of this preamble, DHS intends 
that the provisions remain severable from each other to the maximum 
extent possible. The three automatic extension provisions consolidated 
in this rule--(1) the temporary automatic extension originally 
promulgated in the 2022 TFR, (2) the temporary automatic extension 
originally promulgated in the 2024 TFR and then finalized in this rule, 
and (3) the permanent automatic extension promulgated in this rule--
relate to different populations, arise from different factual 
circumstances, and serve different purposes. Accordingly, DHS intends 
that if a court were to hold, for instance, that the consolidated 
provision is invalid as to the population covered by the permanent 
automatic extension, DHS would nonetheless intend for the rule to 
remain in effect as to those covered by the 2022 TFR and the 2024 TFR. 
By the same token, if a court were to hold that any aspect of the 
automatic extension is invalid as to a particular person or 
circumstance (such as a particular class of EAD renewal applicants), 
DHS would intend that the automatic extension still be available to the 
remaining persons and circumstances covered by this provision.
    Finally, DHS is also amending 8 CFR 274a.13(d)(3) by making 
conforming edits and by replacing the up to 180-day reference with a 
reference to the up to 540 days automatic extension period. To avoid 
confusion, DHS is amending the provision by clearly distinguishing 
between EAD renewal requests filed and adjudicated before May 4, 2022, 
and renewal requests pending on or properly filed on or after May 4, 
2022. Therefore, similar to the 180-day automatic extension period, the 
increased automatic extension period of up to 540 days established in 8 
CFR 274a.13(d)(1) for EAD renewal requests pending on, or properly 
filed on or after May 4, 2022 by this final rule generally will 
automatically terminate the earlier of up to 540 days after the 
expiration date of the EAD or upon issuance of notification of a denial 
on the renewal EAD request. DHS is also amending the provision by 
adding clarifying text that eligible applicants who received an up to 
180-day automatic extension period because they properly filed and 
USCIS adjudicated the renewal EAD application before May 4, 2022, had 
the period terminated the earlier of up to 180 days after the 
expiration date of the Employment Authorization Document (Form I-766) 
or upon issuance of notification of a decision denying the renewal 
request. The changes are effective on January 13, 2025. This rule will 
not make any other changes to 8 CFR 274a.13(d)(3).

C. Revising Authority Citations for 8 CFR Part 274a

    On January 31, 2024, DHS published the U.S. Citizenship and 
Immigration Services Fee Schedule and Changes to Certain Other 
Immigration Benefit Request Requirements final rule adjusting certain 
immigration and naturalization benefit request fees.\283\ As part of 
that rule, DHS revised the authority citations for 8 CFR part 
274a.\284\ In doing so, DHS inadvertently removed the reference to 8 
U.S.C. 1105a.\285\ In this final rule, DHS is amending the authority 
citation for 8 CFR part 274a by adding the reference to 8 U.S.C. 1105a 
again. Additionally, as outlined elsewhere in this final rule,\286\ 
sections 208, 214, and 244 of the INA, 8 U.S.C. 1158, 1184, and 1254a, 
also serve as sources of statutory authority for employment 
authorization. DHS is therefore further amending the authority citation 
by adding these provisions. These revisions are technical in nature and 
do not substantively affect noncitizens seeking employment 
authorization.
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    \283\ See 89 FR 6194 (Jan. 31, 2024) (``2024 Fee Rule'') 
(effective April 1, 2024).
    \284\ See 89 FR 6194, 6399 revising the authority citation for 
part 274a). This resulted in the removal of 8 U.S.C. 1105a, Public 
Law 110-229, 122 Stat. 854, as well as Public Law 115-218, 132 Stat. 
1547 from the authority citation for 8 CFR part 274a.
    \285\ DHS removed the references to Public Law 110-229, 122 
Stat. 854, as amended by Public Law 115-218, 132 Stat. 1547, because 
the affected sections are codified at 48 U.S.C. 1806. Therefore, as 
part of the 2024 Fee Rule, DHS revised the authority citation for 8 
CFR part 274a to only reference 48 U.S.C. 1806. See 89 FR at 6399.
    \286\ See section II.A of this preamble, Legal Authority; see 
also 89 FR 24628, 24630 (Apr. 8, 2024).
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VI. Statutory and Regulatory Requirements

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

    Executive Orders 12866 (Regulatory Planning and Review), as amended 
by Executive Order 14094 (Modernizing Regulatory Review), and 13563 
(Improving Regulation and Regulatory Review) direct agencies to assess 
the costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility.
    The Office of Management and Budget (OMB) has designated this rule 
a ``significant regulatory action'' as defined under section 3(f)(1) of 
E.O. 12866, as amended by Executive Order 14094, because its annual 
effects on the economy relative to a without-TFR baseline are estimated 
to exceed $200 million in any year of the analysis. Accordingly, OMB 
has reviewed this rule.
    As is detailed earlier in the preamble,\287\ DHS has previously 
issued two temporary final rules to help protect certain applicants 
from suffering a lapse of employment authorization and/or documentation 
and related consequences solely because of USCIS processing delays.
---------------------------------------------------------------------------

    \287\ See section III. Purpose and Discussion of the Final Rule.
---------------------------------------------------------------------------

    This final rule amends existing DHS regulations to permanently 
increase the automatic extension period applicable to such expired or 
expiring EADs \288\ and, for noncitizens who are not employment 
authorized incident to status, also the attendant employment 
authorization, for certain applicants who have timely filed their 
renewal EAD applications from up to 180 days to up to 540 days. This 
final rule will be effective January 13, 2025.
---------------------------------------------------------------------------

    \288\ https://www.uscis.gov/green-card/green-card-processes-and-procedures/employment-authorization-document. Forms I-766 or EADs.
---------------------------------------------------------------------------

    In the below analysis, DHS evaluates the effects of (1) permanently 
changing the up to 180 days automatic extension to an up to 540 days 
automatic extension period as measured against a no-action baseline 
(i.e., the effects of the rule as measured against a baseline that 
assumes the existence of the 2022 and

[[Page 101245]]

2024 TFRs) \289\ and (2) changing the up to 180 days automatic 
extension to an up to 540 days automatic extension period (i.e., the 
effects of the rule as measured against a baseline condition that 
assumes the 2022 and 2024 TFRs had not been issued).
---------------------------------------------------------------------------

    \289\ OMB Circular A-4, states ``the benefits and costs of a 
regulation are generally measured against a no-action baseline: an 
analytically reasonable forecast of the way the world would look 
absent the regulatory action being assessed.'' Nov. 9, 2023, https://www.whitehouse.gov/wp-content/uploads/2023/11/CircularA-4.pdf (last 
visited September 26, 2024).
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1. No Action Baseline--Effects of This Final Rule
    Currently, under the 2022 and 2024 TFRs, applicants who properly 
file their EAD renewals by September 30, 2025, will receive an 
automatic extension period of up to 540 days instead of up to 180 days. 
Without any further action, the automatic extension period for 
applications properly filed on or after October 1, 2025, would revert 
to 180 days. Accordingly, the effects of this final rule--which makes 
permanent the up to 540-day automatic extension period--would begin 
when the filing period for the 2024 TFR is scheduled to expire on 
October 1, 2025.
    Part III of this preamble discusses the multiple unpredictable 
circumstances, which resulted in the need for the 2022 and 2024 
TFRs.\290\ For the 2022 TFR, processing times for EAD applications had 
increased due to operational challenges that were exacerbated by the 
emergency measures USCIS had to employ to maintain its operations 
throughout the COVID-19 public health emergency, combined with a sudden 
increase in EAD application filings and litigation resulting in the 
enjoining of the 2020 Fee Rule.\291\ In 2024, the lengthy EAD 
processing times were primarily due to a substantial increase in the 
number of initial EAD applications based on pending asylum applications 
(C08) and litigation that resulted in USCIS being required to process 
initial EAD applications for asylum applicants within 30 days of 
filing.\292\ In addition, the allocation of USCIS personnel to assist 
with historically high levels of encounters at the southwest land 
border between the ports of entry also contributed to long EAD 
processing times.\293\
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    \290\ See Part III. Purpose and Discussion of the Final Rule, of 
this preamble.
    \291\ See Section III.A. Circumstances Resulting in the 2022 
Temporary Final Rule, of this preamble.
    \292\ See Section III.B. Circumstances Resulting in the 2024 
Temporary Final Rule, of this preamble.
    \293\ See Section III.B. Circumstances Resulting in the 2024 
Temporary Final Rule, of this preamble.
---------------------------------------------------------------------------

    While the purpose of the 2022 TFR and the 2024 TFR was to address 
imminent large-scale lapses in employment authorization and/or 
documentation, the purpose of this final rule is to provide a long-term 
solution to mitigate the potential for unpredictable circumstances to 
significantly increase renewal EAD application processing times that 
would require future urgent action to avoid such large-scale lapses in 
employment authorization and/or documentation solely because of USCIS 
processing delays. Based on the recent history described in detail in 
Part III of this preamble, DHS anticipates that this rule is warranted 
to reduce the probability that large numbers of applicants eligible for 
automatic extensions of their expired or expiring EADs will experience 
gaps in employment authorization and/or EAD validity.\294\ This final 
rule may therefore provide for greater earnings stability for 
individuals and maintain continuity of business operations for their 
employers.
---------------------------------------------------------------------------

    \294\ As stated earlier in the preamble, DHS is applying this 
rule to all renewal EAD application categories eligible for 
automatic extension pursuant to 8 CFR 274a.13(d), even though some 
of these categories currently experience processing times that do 
not raise a risk of the applicant experiencing a lapse in employment 
authorization or documentation. Ninety percent of current pending 
EAD automatic extension applications fall within the C08, C09, and 
C10 categories. DHS has made this decision because it has determined 
that it would not be operationally practical for USCIS to implement 
a different approach; making distinctions among categories would 
cause confusion among employers and employees; and backlogs and 
processing times may yet increase for these other categories.
---------------------------------------------------------------------------

    When there is not a significant backlog and processing times are 
180 days or less, then this rule has no quantifiable impacts as the EAD 
renewal applications would be adjudicated within the existing 180-day 
automatic extension period. Instead, it would simply serve to reduce 
uncertainty for noncitizens and employers, without which there would be 
an unknown risk of loss of work authorization. It also reduces 
uncertainty about a need for future temporary rules to address 
unforeseen circumstances.
    In the scenario an unforeseen circumstance causes processing times 
to extend beyond the current 180-day automatic extension period and the 
potential for lapses in renewal EADs, the rule results in benefits and 
cost savings, relative to those who without such action would realize a 
cost.\295\
---------------------------------------------------------------------------

    \295\ Individuals would benefit from being able to maintain 
their employment authorization and, by extension, their employment, 
without disruption. There would be cost savings to employers in 
terms of continuity of business operations due to the worker not 
being separated.
---------------------------------------------------------------------------

    To quantify the potential benefit and cost savings impacts of this 
final rule, DHS would need a basis for estimating how many cases would 
lapse due to future unknown backlogs, which could occur at unknown time 
intervals. While in the short-run, DHS has data about EADs that are 
expiring through June 2029, it lacks data to accurately assess evolving 
circumstances and unknown factors that could cause potential 
backlogs.\296\ These factors vary and include allocation constraints on 
adjudication resources and unexpected fluctuation in the volume of EAD 
filings. Evidence of the difficulty in producing these forecasts can be 
found in the changes in the number of EADs that USCIS estimated would 
lapse without the 2024 TFR based on circumstances in an October 2023 
analysis as compared to the more recent July 2024 analysis.\297\ 
Therefore, DHS is unable to forecast with certainty whether, how often, 
and with respect to how many applications processing times may extend 
beyond 180 days and how severe the backlogs may become. Accordingly, 
given the large amount of uncertainty around these factors, DHS is 
unable to produce a tenable population estimate for the future 
population--beyond the 2024 TFR--that may benefit from this permanent 
change to the automatic extension period.\298\
---------------------------------------------------------------------------

    \296\ With the 2024 TFR being effective for some applicants 
until September 2027, approximately 1.8 million approved EADs with 
an eligibility category in the automatic extension classifications 
(all classifications, including TPS) are facing expiration between 
October 2027 and June 2029 (data as of July 1, 2024). About 89% of 
the 1.8 million are the C08 (60%) and the C09 (29%) classifications.
    \297\ As noted earlier in this preamble, in the 2024 TFR, DHS 
projected that approximately 260,000 renewal EAD applicants may lose 
at least 1 day of employment authorization and/or documentation 
despite the 540-day automatic extension period. 89 FR 24628, 24647 
(Apr. 8, 2024). This projection was based on the conditions in place 
at the time of the analysis in late 2023. That projection therefore 
could not take into account the complete effect of operational and 
policy changes described in the TFR, combined with any future 
changes and operational shifts (such as hiring additional officers 
or implementing technological improvements for processing 
efficiency). However, based on a July 2024 analysis, DHS now 
projects that approximately 46,000 renewal EAD applicants may lose 
at least 1 day of employment authorization under the 2022 and 2024 
TFRs, between and including July 2024 and March 2027. The decrease 
in projection is primarily attributed to an increase in completions 
during the time period between the 2024 TFR analysis (October 2023) 
and this analysis (July 2024), specifically for C08 and C09 renewal 
EAD filings.
    \298\ Based on the positive impacts to the populations affected 
by the 2022 and 2024 TFRs, we can deduce that this final rule will 
have the same or similar effect on the future population in terms of 
reducing potential renewal EAD lapses. In other words, without this 
final rule, we would expect that any future population expirations 
would have impacts on earnings and labor turnover costs relative to 
those avoided by the 2022 and 2024 TFRs.

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

[[Page 101246]]

2. Without TFR Baseline--Effects of the 2022 and 2024 TFRs
i. Introduction
    In the absence of this rule, and the hypothetical absence of the 
2022 TFR and the 2024 TFR, USCIS estimates that between approximately 
306,000 and 468,000 renewal EAD applicants would experience a lapse in 
employment authorization and/or employment authorization documentation 
between this rule's July 2023 and March 2026 period of analysis.
    As of the current data analysis (data as of July 1, 2024), despite 
the temporary extension up to 540 days under the 2022 TFR and 2024 TFR 
and the permanent extension up to 540 days in this final rule, about 
46,000 renewal EAD applicants during the period analyzed may still 
experience a lapse \299\ beginning in July 2024 assuming status quo 
conditions.\300\ However, as discussed in Part IV.K.2 of this preamble, 
Increase the Automatic Extension Period to 730 Days, USCIS has taken 
steps to address this population of 46,000 applicants operationally.
---------------------------------------------------------------------------

    \299\ Extensions beyond 540 days would likely reduce the number 
of EADs that would still lapse; however, this final rule opts for an 
up to 540-day extension, as discussed in the preamble and later in 
``Alternatives Considered.''
    \300\ The estimate of 46,000 renewal EAD applicants that may 
still experience a lapse is based on assumptions that renewal 
applicants will maintain the same filing behavior, operational 
efficiency and productivity will not change, and staffing levels and 
adjudication hours for EAD renewals will remain unchanged. Please 
see ``Background and Population'' for more information. These 46,000 
applicants filed include applicants affected by both the 2022 TFR 
and 2024 TFR: 21,000 covered by the 2022 TFR but have been pending 
at least 540 days after their EAD expiration date as well as an 
estimated 25,000 who received a 540-day automatic extension period 
under the 2024 TFR but who USCIS estimates will remain pending more 
than 540 days after their EAD expiration date absent any changes. 
Please see DHS public comment responses in ``Allow a Second 540-Day 
Automatic Extension Period for Noncitizens who Received the 2022 TFR 
Automatic Extension'' and ``Increase the Automatic Extension Period 
to 730 Days'' in this preamble for more information.
---------------------------------------------------------------------------

    Because USCIS cannot forecast the future population with precision, 
we present a baseline population that could range from 306,000 to 
468,000. After applying an adjustment for current unemployment 
conditions in the economy (described in detail in the ensuing analysis 
section), we arrive at an adjusted population that could range from 
293,000 to 449,000.\301\
---------------------------------------------------------------------------

    \301\ Calculations: 306,016-(306,016 x 4.1%) = 293,469; 468,104-
(468,104 x 4.1%) = 448,912.
---------------------------------------------------------------------------

    DHS has prepared two types of quantified estimates of the impacts 
that could be generated by this final rule applicable to the adjusted 
population. This rule will prevent the majority of EAD holders from 
incurring a loss of earnings (``stabilized earnings'') because of USCIS 
processing delays for renewal EAD applications, as under this rule 
there will be no disruption to their earnings due to a lapsed EAD. This 
rule will also generate labor turnover cost-savings to businesses that 
employ the EAD holders, as under this rule there would not be a 
disruption to the majority of EAD holders' employment authorization 
and/or document validity. Additionally, to the extent this rule 
prevents affected EAD holders' jobs from going unfilled, there will be 
fewer reductions in tax transfers from businesses and employees to the 
Federal Government.\302\
---------------------------------------------------------------------------

    \302\ This rule will also prevent a reduction in State and local 
tax revenue but that is not quantified in this analysis. Please see 
Table 10 for more information.
---------------------------------------------------------------------------

    Due to substantial variation in the inputs utilized to estimate the 
impacts, there is a very wide range in which they could fluctuate. 
These impacts are summarized in Table 8, where the monetized figures 
represent the forecast expected value (which is the mean of trial-based 
simulations) discounted at 2 percent.

                       Table 8--Summary of Impacts
                [$2023 Dollars, FY 2023 through FY 2027]
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
EAD Holder Earnings Preserved (``Stabilized Earnings''):
     Entities directly affected: Individual EAD holders.
     Population: maximum 293,000 to 449,000 individuals with
     renewal EADs.
     Monetized present value estimate (2 percent): $10.0
     billion.
     Type: Stabilized labor income to affected renewal EAD
     applications; this labor income is a proxy for either prevented
     transfers from EAD holders to others in the workforce or cost
     savings to employers for preserved productivity, depending on if
     employers would have been able to easily find replacement labor if
     the affected EAD holders' employment authorization had lapsed.
     Summary: Individuals would benefit from being able to
     maintain their employment authorization and, by extension, their
     employment, without disruption; DHS estimated these savings based
     on projected EAD lapse durations and labor earnings, both of which
     vary within a range.
     Potential preserved employment taxes: $1.1 billion (Present
     Value, 2-percent discount rate); actual amount will depend on how
     easily businesses would have been able to find replacement labor if
     the affected EAD holders' employment authorization had lapsed.
Employer Labor Turnover Cost Savings:
     Entities directly affected: businesses that employ the EAD
     holders.
     Population: Possibly 25,500 to 39,000 employers.
     Monetized present value estimate (2 percent): $3.5 billion.
     Type: Cost-savings.
     Summary: There would be cost savings to employers in terms
     of continuity of business operations due to the worker not being
     separated; DHS estimated these savings based on information
     applicable to turnover costs relevant to employee annual earnings,
     both of which vary within a range.
Other Impacts Considered:
     Individuals impacted would likely benefit from cost-savings
     accruing to not having to incur the direct costs and some related
     costs associated with searching for and obtaining a new job once
     their renewal EAD that lapsed is eventually approved.
     To the extent that individuals' earnings will be
     maintained, burdens to their support network would be prevented.
     DHS does not expect adverse disruptions to the labor
     market, as the longer automatic extension period is intended to
     avoid disruptions to employment.
     DHS did not include estimates for stabilized earnings for
     any duration of continued unemployment that, without the longer
     automatic extension period, EAD holders might have experienced
     beyond their EAD lapse duration. Inclusion of such additional time
     would increase the estimates of saved earnings.
     Avoid opportunity costs to businesses for having to choose
     the next best alternative to employment of the affected renewal EAD
     applicant. USCIS does not know if the replacement hire in a next
     best alternative scenario would have been a comparable substitute
     (i.e., a productivity or profit charge to employers).
     Prevent adverse impacts on businesses and individuals
     resulting from the uncertainty associated with widescale lapses in
     employment authorization.
------------------------------------------------------------------------

    Some of the impacts of the longer automatic extension period depend 
on whether businesses would have been able to find replacement labor 
for the positions the affected renewal EAD applicants would have lost 
if they had experienced a gap in employment authorization and/or 
employment authorization documentation. If businesses would have been 
able to find replacement labor from the pool of the unemployed, the 
only monetized cost savings to society is for preventing costs 
resulting from labor turnover. If businesses would not have been able 
to

[[Page 101247]]

find replacement labor, the monetized cost savings would also include 
prevented lost productivity due to a lack of available labor. However, 
the impacts to the affected renewal EAD applicants do not depend on 
whether their employer can find replacement labor. The longer automatic 
extension period will prevent affected renewal EAD applicants from 
incurring a loss of earnings.
    DHS estimates that stabilized earnings to renewal EAD applicants 
affected by the 2022 and 2024 TFRs over the FY 2023 through FY 2027 
period of analysis ranges from $0.5 billion to $5.7 billion with a 
primary estimate of $2.1 billion (annualized, 2 percent), depending on 
the wages and other compensation the renewal EAD applicants earn, the 
number of renewal EAD applicants affected, and the duration of the gap 
in employment authorization and/or employment authorization 
documentation that would occur without those rules.\303\ DHS uses 
estimates of the stabilized earnings as a measure of either: (1) 
prevented transfers of this compensation from the affected population 
to others in the labor market; or (2) a proxy for businesses' cost 
savings from prevented lost productivity, depending on whether 
businesses would have been able to find replacement labor if employment 
authorization for affected renewal EAD applicants had lapsed.
---------------------------------------------------------------------------

    \303\ Lapse-duration accounted for approximately 77.0 percent of 
this range, wages accounted for 21.4 percent, and the population 1.6 
percent. For more information, please see ``Earnings impact to EAD 
holders.''
---------------------------------------------------------------------------

    DHS does not know what the next best labor alternative would have 
been for businesses had employment authorization lapsed for affected 
EAD holders. Accordingly, DHS does not know the portion of the overall 
effects of this rule that are transfers or costs savings. To begin, DHS 
describes the two extreme scenarios, which provide the bounds for the 
range of effects.
    Scenario 1: If, in the absence of an increase in the automatic 
extension period, all businesses would have been able to immediately 
find reasonable labor substitutes for the positions the renewal EAD 
applicants would have lost, businesses would have lost little or no 
productivity. Accordingly, over the period of analysis the TFRs prevent 
$2.1 billion (primary estimate annualized, 2 percent) from being 
transferred from affected renewal EAD applicants to workers currently 
in the labor force (whom are not presently employed full time) or 
induced back into the labor force and this rule would result in $0 cost 
savings to businesses for prevented productivity losses.
    Scenario 2: Conversely, if all businesses would have been unable to 
within the period of analysis find reasonable labor substitutes for the 
position the EAD holder filled, then businesses would have lost 
productivity. Accordingly, $2.1 billion is the estimated monetized cost 
savings for prevented productivity losses and $0 is prevented from 
being transferred from affected renewal EAD applicants to replacement 
labor. Because under this scenario businesses would not have been able 
to find replacement labor, the action may also result in additional 
cost savings to employers for prevented profit losses; and further, may 
also prevent a reduction in tax transfer payments from businesses and 
employees to the government. DHS has not estimated all potential tax 
effects but notes that stabilized earnings of $2.1 billion would have 
resulted in employment tax losses to the Federal Government (i.e., 
Medicare and Social Security) of $0.2 billion (annualized, 2 percent).
    In both scenarios, whether without an increase in the automatic 
extension period employers would have been able to find replacement 
labor for affected renewal EAD applicants or not, DHS assumes that 
businesses would have incurred labor turnover costs for having to 
search for a replacement for affected renewal EAD applicants. 
Accordingly, DHS estimates preventing EAD lapses will also result in 
additional labor turnover cost savings to businesses ranging from $0.06 
billion to $2.4 billion, with a primary estimate of $0.7 billion 
(annualized, 2 percent) depending on the wages and other compensation 
the renewal EAD applicants earn, the number of renewal EAD applicants 
affected, and the replacement cost to employers.
    Table 9 below summarizes these two scenarios and the primary 
estimate at a 2-percent discount rate. Because DHS does not know the 
overall proportion of businesses that would have been able to easily 
find replacement labor in the absence of the 2022 and 2024 TFRs, for 
DHS's primary estimate we assume that replacement labor would have been 
immediately found for half of all renewal EAD applicants and not found 
for the other half (i.e., an average of the two extreme scenarios 
described above). However, May 2024 unemployment and job openings data 
indicate there are more jobs available than people looking for 
jobs.\304\ Accordingly, we believe the impacts of the longer automatic 
extension period provided by the 2022 and 2024 TFRs will most likely 
skew towards Scenario 2, resulting in mostly cost savings for employers 
who would have been unable to fill the jobs of affected renewal EAD 
applicants without this change.
---------------------------------------------------------------------------

    \304\ Bureau of Labor Statistics data show that, as of May 2024, 
there were 0.8 unemployed persons per job opening. See U.S. 
Department of Labor, U.S. Bureau of Labor Statistics, ``Number of 
unemployed persons per job opening, seasonally adjusted,'' 
www.bls.gov/charts/job-openings-and-labor-turnover/unemp-per-job-opening.htm (last visited July 29, 2024).

[[Page 101248]]



                          Table 9--Primary Estimate--Monetized Annualized Impacts at 2%
                                                   [Millions]
----------------------------------------------------------------------------------------------------------------
                                                              Scenario 1:     Scenario 2:  no
                                                               immediate        replacement    Primary estimate:
                                                              replacement     labor found for      replacement
            Category                     Description        labor found for    affected EAD     labor found  for
                                                              all affected    over the period   half of affected
                                                                  EAD           of analysis       EAD  holders
----------------------------------------------------------------------------------------------------------------
                                                    Transfers
----------------------------------------------------------------------------------------------------------------
Stabilized Earnings.............  Prevented compensation           $2,114.1                $0           $1,057.1
                                   transfers from renewal
                                   EAD applicants to other
                                   workers.
Employment Taxes................  Prevented reduction in                  0             223.1              111.6
                                   employment taxes paid
                                   to the Federal
                                   Government.
----------------------------------------------------------------------------------------------------------------
                                                  Cost Savings
----------------------------------------------------------------------------------------------------------------
Labor Turnover..................  Prevented labor turnover            734.8             734.8              734.8
                                   costs to businesses.
Productivity....................  Prevented lost                          0           2,114.1            1,057.1
                                   productivity to
                                   businesses (stabilized
                                   earnings used as a
                                   proxy).
                                                           -----------------------------------------------------
    Total Cost Savings..........                                      734.8           2,848.9            1,791.9
----------------------------------------------------------------------------------------------------------------

    There are two important caveats to the monetized estimates. First, 
as the pending caseload evolves over the course of time that the 2022 
and 2024 TFRs apply to, the pending count and therefore the total 
number of renewal EAD applications and individuals associated with them 
will change.\305\ A resultant effect of the caseload changes is that as 
USCIS works through this backlog, the number of affected renewal EAD 
applicants and the durations for which renewal EAD applicants may 
experience a lapse in employment absent a change in the automatic 
extension period will likely vary from the durations modeled. As a 
result, DHS acknowledges the uncertainty in the above monetized 
impacts.
---------------------------------------------------------------------------

    \305\ Caseload changes can be the result of workforce hiring 
and/or officer re-assignments to other non-renewal EAD application 
workloads, as well as policy changes such as increasing certain EAD 
validity periods and improving processing efficiency through 
increased use of technological advancements.
---------------------------------------------------------------------------

    Second, DHS recognizes that non-work time performed in the absence 
of employment authorization has a positive value, which is not 
accounted for in the above monetized estimates.\306\ For example, if 
someone performs childcare, housework, home improvement, or other 
productive or non-work activities that do not require employment 
authorization, that time still has value. In assessing the burden of 
regulations to unemployed populations, DHS routinely assumes the time 
of unemployed individuals has some value.\307\ The monetized estimates 
of the compensation an increase in the automatic extension period 
preserves are measured relative to a baseline in which individuals lose 
employment authorization and the associated income as a result of the 
problem the action seeks to address. The monetary value of the 
compensation an increase in the automatic extension period preserves 
are savings to the individual, but DHS has considered whether net 
societal savings may be lower than the sum of the preserved 
compensation to the individuals and whether a more accurate estimate of 
the net impact to society from losing employment authorization might 
take into account the value of individuals' non-work time, even though 
this population has lost their authorization to sell their time as 
labor.
---------------------------------------------------------------------------

    \306\ Boardman et al., Cost-Benefit Analysis Concepts and 
Practice (2018), p.152.
    \307\ For regulatory analysis purposes, DHS generally assumes 
the value of time for unemployed individuals is at least the value 
of the Federal minimum wage.
---------------------------------------------------------------------------

    Due to the variety of values placed on non-work time, and the 
additional fact that this non-work time is involuntary, it is difficult 
to estimate the appropriate adjustment that DHS should make to 
preserved compensation to account for the social value of non-work 
time. Accordingly, DHS recognizes that the net societal savings may be 
somewhat lower than those reported below, but they are a reasonable 
estimate of the impacts to avoiding the costs of lapsed employment 
authorization.
    Pursuant to OMB Circular A-4, DHS has prepared an A-4 Accounting 
Statement for the effects of changing the up to 180 days automatic 
extension to an up to 540 days automatic extension period (i.e., the 
effects of the rule as measured against a baseline condition that 
assumes the 2022 and 2024 TFRs had not been issued).\308\
---------------------------------------------------------------------------

    \308\ OMB Circular A-4 (November 9, 2023) is available at 
https://www.whitehouse.gov/wp-content/uploads/2023/11/CircularA-4.pdf (last viewed on July 29, 2024).

[[Page 101249]]



                                              Table 10--OMB A-4 Accounting Statement--Without TFR Baseline
                                             [$ Millions, 2023; Period of analysis: FY 2023 through FY 2027]
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
Category                                               Primary estimate                Minimum         Maximum  Source citation (RIA, preamble, etc.)
                                                                                      estimate        estimate
--------------------------------------------------------------------------------------------------------------------------------------------------------
Benefits:
                                               --------------------------------
    Monetized Benefits........................              2%             N/A             N/A             N/A  RIA.
    Annualized quantified, but un-monetized,                  N/A                          N/A             N/A  RIA.
     benefits.
                                               ----------------------------------------------------------------
    Qualitative (unquantified) benefits.......   Avoiding a lapse in employment authorization and/or    RIA.
                                                EAD validity for renewal EAD applicants may also prevent any
                                                monetary or other support that would have been necessary for
                                                the support network of affected EAD holders to transfer to
                                                affected EAD holders during such a period of unemployment.
                                                 Prevent affected individuals from incurring direct     RIA.
                                                and indirect costs associated with looking for work.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Costs:
    Annualized monetized costs................              2%       -$1,791.9          -$61.1       -$8,172.6  RIA.
                                               --------------------------------
    Annualized quantified, but un-monetized,                  N/A                          N/A             N/A  RIA.
     costs.
                                               ----------------------------------------------------------------
    Qualitative (unquantified) costs..........   Better ensure other cost savings of holding an EAD or  RIA.
                                                employment will not be disrupted or subject to significant
                                                uncertainty because of USCIS processing delays, such as valid
                                                identity documents, or health insurance obtained through an
                                                employer.
                                                 Prevent adverse impacts on businesses that would
                                                result from required terminations for affected renewal EAD
                                                applicants, or the uncertainty associated with widescale
                                                lapses in employment authorization.
                                                 In cases where, in the absence of a change to the
                                                automatic extension period, companies cannot find reasonable
                                                substitutes for the labor the affected renewal EAD applicants
                                                have provided, affected businesses would also save profits
                                                from the productivity that would have been lost. In all cases,
                                                companies would avoid opportunity costs from having to choose
                                                the next best alternative to employment of the affected
                                                renewal EAD applicant.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Transfers:
    Annualized monetized transfers: ``on                    2%              $0              $0              $0  RIA.
     budget''.
                                               ----------------------------------------------------------------
    From whom to whom?........................                                N/A                               N/A.
                                               ----------------------------------------------------------------
    Annualized monetized transfers: stabilized              2%        $1,057.1              $0        $5,741.6  RIA.
     earnings.
                                               ----------------------------------------------------------------
    From whom to whom?........................   Prevent compensation from transferring from affected renewal   RIA.
                                                               EAD applicants to other workers.
                                               ----------------------------------------------------------------
    Annualized monetized transfers: taxes.....              2%          $111.6              $0          $605.8  RIA.
                                               ----------------------------------------------------------------
    From whom to whom?........................    Prevent a reduction in employment taxes from companies and    RIA.
                                                  employees to the Federal Government (quantified). It would
                                                  also prevent a reduction in income taxes from employees to
                                                     Federal, State, and local governments (unquantified).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Category                                                                    Effects                             Source citation
                                                                                                                (RIA, preamble, etc.)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Effects on State, local, and/or tribal                Prevent a reduction in State and local tax revenue        RIA.
 governments.                                     (unquantified). Also prevent potential reliance on State or
                                                  local government-funded support services that may have been
                                                       necessary with a gap in employment authorization
                                                                        (unquantified).
                                               ----------------------------------------------------------------
Effects on small businesses...................   The 2022 and 2024 TFRs and this rule do not directly regulate  RIA, RFA.
                                                small entities but have indirect cost-saving to small entities
                                                     that may employ affected renewal EAD applicants. Such
                                                businesses will avoid the costs for labor turnover and loss of
                                                productivity and profits had they not been able to immediately
                                                     fill the labor performed by the affected renewal EAD
                                                                          applicant.
                                               ----------------------------------------------------------------
Effects on wages..............................    Preserve access to wages and other compensation for renewal   RIA.
                                                                        EAD applicants.
                                               ----------------------------------------------------------------
Effects on growth.............................                               None.                              RIA.
--------------------------------------------------------------------------------------------------------------------------------------------------------

ii. Background and Population
    As is detailed elsewhere in the preamble, DHS has twice temporarily 
increased the current 180-day automatic extension period for certain 
renewal EAD applicants' employment authorization and/or EADs from up to 
180 days to up to 540 days. The increase granted by the 2022 TFR was 
available to eligible renewal applicants whose EAD applications were 
pending as of May 4, 2022, and to eligible applicants

[[Page 101250]]

who filed a renewal EAD application during the 540-day period beginning 
on or after May 4, 2022, and ending October 26, 2023. The increase 
granted by the 2024 TFR was available to eligible renewal applicants 
who filed a renewal EAD application on or after October 27, 2023, and 
on or before September 30, 2025.
    DHS has carefully analyzed the current backlog of cases (as of a 
July 1, 2024 analysis) and has been able to estimate a ``baseline'' 
population of about 388,000 EADs that would potentially face a lapse by 
March 2026 in the absence of the 2022 and 2024 TFRs.\309\ In developing 
the populations examined for this analysis, we focus on cases that 
received the 540-day automatic extension under either the 2022 or 2024 
TFR and whose EAD was still pending as of the present date of analysis 
(July 1, 2024) and filings through September of 2025. This methodology 
is conceptually the same as that modeled in the 2024 TFR and we are 
essentially re-estimating the effects because the population and 
certain other quantitative inputs, such as completions and case 
processing, have changed substantially.\310\ Our analysis considers 
actual and projected filing volumes,\311\ filing time behavior, case 
processing times, and officer completion metrics. However, there is 
likely to be some variation in the officer completion metrics that 
source this figure, and we have allowed this input to vary 10- and 15-
percent from status quo conditions to account for uncertainty such as 
in USCIS workforce hiring of adjudication officers and officer re-
assignments to other non-renewal EAD application workloads.\312\ The 
results are captured in Table 11, which shows by EAD category. As is 
shown, with a 180-day automatic extension period the lapse population 
could range from about 306,000 to 468,000, and under status quo 
conditions with the 540-day automatic extension period granted by the 
2022 and 2024 TFRs, about 46,000 could still lapse beginning in July 
2024.\313\
---------------------------------------------------------------------------

    \309\ This baseline population was derived under the 
hypothetical condition that the 2022 and 2024 TFRs were not 
implemented, meaning that certain renewal EAD filers were subject to 
an up to 180-day automatic extension period instead of an up to 540-
day period.
    \310\ We note that the affected population estimates in this 
analysis (i.e., the number of EADs expected to lapse without an 
increase in the automatic extension period), were estimated during a 
period between July 2023 and March 2026 while the 2024 TFR estimated 
affected populations between May 2024 and March 2026. For more 
information, please see footnote 353.
    \311\ We note that approximately 135,403 renewal EAD 
applications were filed between October 27, 2023, and April 7, 2024 
(i.e., after the application period for the 2022 TFR ended but 
before the 2024 TFR published). Some, but not all of the 135,403 
renewal applications are a subset of the broader ``baseline'' 
population of 387,750. As of July 1, 2024, 131,935 were still within 
their existing facial validity date or within the 180-day automatic 
extension period and have not benefited from the 2024 TFR yet but 
may in the near future. The remaining 3,468 have been prevented from 
lapsing due to the implementation of the 2024 TFR. However, these 
3,468 would potentially face a lapse by March 2026 because, as 
detailed later in ``Earnings impact to EAD holders,'' as of the 
current date of analysis, they have benefited from a part of the 
2024 TFR and still have some benefit to accrue until their EAD would 
be adjudicated. Source: USCIS analysis of renewal EAD auto extension 
expirations data, provided by DHS, USCIS, OPQ, Claims 3 database; 
data provided July 24, 2024.
    \312\ All other variables remain constant.
    \313\ Certain categories have been excluded from this analysis. 
The A17 (E spouses), A18 (L spouses) and C26 (H spouses) potential 
automatic extensions are limited to the duration of their unexpired 
I-94 or the automatic extension period, whichever is shorter. 
However, I-94 data is controlled by CBP Arrival and Departure 
Information System (ADIS) and is currently not available in a batch/
systematic manner for USCIS to use to calculate this automatic 
extension end date and estimate these populations. Moreover, a large 
cohort of E, L, and H spouses concurrently file renewal EAD 
applications with an underlying Form I-129 and Form I-539, and 
therefore the automatic extension end date is limited by the current 
I-94 validity date. But, in these circumstances, the E, L, and H 
spouses do not have an unexpired I-94 that extends beyond the 
current expiration date of the existing EAD. While a minority of 
renewal EAD applications filed for these spouses are not filed 
concurrently with the Form I-539, and their associated EADs face 
expiration, USCIS projects that H spouses (the largest population in 
the cohort) would mostly be processed on time to avoid any lapses in 
EAD validity. Furthermore, with the new ``incident to status'' 
employment authorization for E and L spouses, the relatively low 
number of A17 and A18 renewals noticeably decreased during the first 
six months of FY 2024. The A12 and C19 categories (TPS categories) 
often have a separate automatic extension related to each country-
specific Federal Register Notice (FRN). Additionally, each TPS 
designation, redesignation, or extension only remains in place for 
up to 18 months at a time. A07, A08, C16, C20, C22, C24, and C31 all 
have relatively low renewal filing rates. As such, these categories 
are excluded from this analysis.

                       Table 11A--EADs That Could Lapse With a 180-Day Automatic Extension Period, by Class and Percent Variation
--------------------------------------------------------------------------------------------------------------------------------------------------------
                Variation                      A03 *            A05             A10             C08             C09           C10 **           Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
+15%....................................           2,535             416               0         244,243           3,535          55,286         306,016
+10%....................................           2,535             496               0         273,277           5,896          55,286         337,490
Status quo..............................           2,535             962               0         320,016           8,952          55,286         387,750
-10%....................................           2,535           1,533               0         368,346          16,514          55,286         444,214
-15%....................................           2,535           1,798               0         383,598          24,887          55,286         468,104
--------------------------------------------------------------------------------------------------------------------------------------------------------
                    Table 11B--EADs That Could Still Lapse With a 540-Day Automatic Extension Period, by Class and Percent Variation
--------------------------------------------------------------------------------------------------------------------------------------------------------
Variation                                            A03             A05             A10         C08 ***             C09             C10           Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
+15%....................................           2,197               0               0              44               0          31,265          33,506
+10%....................................           2,222               0               0              44               0          34,259          36,525
Status quo..............................           2,277               0               0              44               0          43,653          45,975
-10%....................................           2,324               0               0              44               0          46,900          49,269
-15%....................................           2,357               0               0           8,017               0          47,654          58,029
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: USCIS analysis of renewal EAD filing data, provided by DHS, USCIS, Office of Performance and Quality (OPQ), Claims 3 database; data provided
  July 11, 2024.
Note: Numbers may not total exactly due to rounding.
* The estimated A03 population size in Table 11A does not change with the changes in variation because of a small number of average adjudications per
  month. The status quo number of average adjudications per month during July 2023 through June 2024 was 47. A plus 15% variation would be 54 and a
  minus 15% variation would be 40. This small change, coupled with a 180-day automatic extension does not change the population estimates over the
  variation range (+/-15%).
** The estimated C10 population size in Table 11A does not change with the changes in variation with a 180-day automatic extension because at the time
  of this analysis (data as of July 1, 2024) C10s were already beginning to expire due to a backlog. There would need to be a much more significant
  variation than +/-15% to the status quo average adjudications rate per month of 2,735 for there to be changes in this population.
*** The C08 population estimated in Table 11B would experience a wave of expirations beginning in October 2026 if the adjudication rate were to decrease
  15% from the status quo based on the estimated volume. The estimated 44 cases for the other variation scenarios were projected to expire by July 2024.

    In the absence of this rule, and the hypothetical absence of the 
2022 TFR and the 2024 TFR, we estimate that between 306,000 and 468,000 
renewal EAD applicants still pending adjudication as of July 1, 2024, 
would

[[Page 101251]]

potentially experience a lapse in employment authorization and/or 
employment authorization documentation. Absent any intervention, this 
population would have begun to lapse in July 2023, as applicants would 
have only had the option of an automatic extension period of up to 180 
days. These lapses were projected through March 2026, approximately 180 
days after the expiration of the 2024 TFR. The TFRs reduced the 
likelihood that renewal EAD applicants will experience gaps in 
employment authorization and/or EAD validity with an automatic 
extension period of up to 540 days. Because the 2022 TFR and 2024 TFRs 
automatically extended the validity of eligible EADs for up to an 
additional 540 days and did not on their own reduce incoming volumes, 
it is estimated that the adjudication period for some renewal EADs is 
expected to exceed even the 540 days granted under the TFRs and 
therefore some renewal EAD applicants may still experience lapses. 
Table 12 provides a granular tabulation of the populations without the 
TFRs and with the TFRs and Figure 2 provides a monthly expirations of 
status quo condition values from Table 12.

                                             Table 12--Population Projections by Month, Rounded to Thousands
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                180-Day automatic extension period              540-Day automatic extension period
                                                        ------------------------------------------------------------------------------------------------
                                                           Low bound:                      Upper bound:     Low bound:                     Upper bound:
                                                           EADs facing     Status quo:     EADs facing      EADs facing     Status quo:     EADs facing
                                                           lapse each      EADs facing      lapse each      lapse each      EADs facing     lapse each
                                                         month  (status    lapse each     month  (status  month  (status    lapse each    month  (status
                                                            quo +15%)         month         quo -15%)        quo +15%)         month         quo -15%)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Jul-23.................................................               0               0               0   ..............  ..............  ..............
Aug-23.................................................           1,000           1,000           1,000   ..............  ..............  ..............
Sep-23.................................................           3,000           3,000           3,000   ..............  ..............  ..............
Oct-23.................................................           3,000           3,000           3,000   ..............  ..............  ..............
Nov-23.................................................           2,000           2,000           2,000   ..............  ..............  ..............
Dec-23.................................................           2,000           2,000           2,000   ..............  ..............  ..............
Jan-24.................................................           3,000           3,000           3,000   ..............  ..............  ..............
Feb-24.................................................           6,000           6,000           6,000   ..............  ..............  ..............
Mar-24.................................................           8,000           8,000           8,000   ..............  ..............  ..............
Apr-24.................................................           8,000           8,000           8,000   ..............  ..............  ..............
May-24.................................................           6,000           6,000           6,000   ..............  ..............  ..............
Jun-24.................................................           8,000           8,000           8,000   ..............  ..............  ..............
Jul-24.................................................          12,000          12,000          12,000                0               0               0
Aug-24.................................................          10,000          10,000          10,000            1,000           1,000           1,000
Sep-24.................................................          12,000          13,000          15,000            2,000           2,000           2,000
Oct-24.................................................          10,000          11,000          12,000            1,000           2,000           2,000
Nov-24.................................................          10,000          13,000          16,000            1,000           1,000           1,000
Dec-24.................................................          11,000          11,000          14,000            1,000           1,000           1,000
Jan-25.................................................           7,000           9,000          12,000            1,000           2,000           2,000
Feb-25.................................................          14,000          17,000          20,000            2,000           2,000           3,000
Mar-25.................................................           7,000          11,000          14,000            2,000           3,000           3,000
Apr-25.................................................           8,000          12,000          18,000            3,000           4,000           4,000
May-25.................................................           7,000          13,000          18,000            2,000           2,000           2,000
Jun-25.................................................           6,000          11,000          14,000            1,000           1,000           2,000
Jul-25.................................................          11,000          15,000          20,000            1,000           2,000           2,000
Aug-25.................................................          10,000          14,000          21,000            1,000           2,000           2,000
Sep-25.................................................          14,000          18,000          28,000            2,000           2,000           3,000
Oct-25.................................................          14,000          23,000          28,000            1,000           2,000           2,000
Nov-25.................................................          22,000          28,000          35,000            2,000           3,000           3,000
Dec-25.................................................          18,000          23,000          29,000            1,000           2,000           2,000
Jan-26.................................................          19,000          28,000          31,000            1,000           2,000           2,000
Feb-26.................................................          18,000          27,000          30,000            5,000           7,000           8,000
Mar-26.................................................          18,000          21,000          22,000            1,000           2,000           2,000
Apr-26.................................................  ..............  ..............  ...............               0               0               0
May-26.................................................  ..............  ..............  ...............               0               0               0
Jun-26.................................................  ..............  ..............  ...............               0               0               0
Jul-26.................................................  ..............  ..............  ...............               0               0               0
Aug-26.................................................  ..............  ..............  ...............               0               0               0
Sep-26.................................................  ..............  ..............  ...............               0               0               0
Oct-26.................................................  ..............  ..............  ...............               0               0           3,000
Nov-26.................................................  ..............  ..............  ...............               0               0           3,000
Dec-26.................................................  ..............  ..............  ...............               0               0           3,000
Jan-27.................................................  ..............  ..............  ...............               0               0               0
Feb-27.................................................  ..............  ..............  ...............               0               0               0
Mar-27.................................................  ..............  ..............  ...............               0               0               0
--------------------------------------------------------------------------------------------------------------------------------------------------------
    Total..............................................         306,000         388,000         468,000           34,000          46,000          58,000
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: USCIS analysis of renewal EAD filing data, provided by DHS, USCIS, OPQ, Claims 3 database; data provided July 11, 2024.
Note: A projection of 0 is 1 or more EAD but less than 500 due to rounding to thousands; ``......; indicates no data.


[[Page 101252]]


    [GRAPHIC] [TIFF OMITTED] TR13DE24.073
    
    An assumption that is implicit in the populations developed above 
is that every individual with a lapsed EAD would be unauthorized to 
work. In reality, some of the individuals may be authorized to work--or 
become authorized to work--incident to status and merely relying upon 
the EAD to evidence that employment authorization. Others may be 
relying upon the EAD as a government-issued identity document and not 
using it to obtain employment. In either instance, USCIS does not know, 
and is unable to reasonably estimate, how many individuals or what 
percentages of the populations may be separately employment authorized 
or otherwise not relying on the EAD to document their employment 
authorization. It is possible, therefore, that the lower bound estimate 
of population is overstated.
    USCIS stresses that the population over time can vary via changes 
in volumes, processing times, and other factors that are very difficult 
to predict. As such, DHS acknowledges the uncertainties in these 
estimates, but they represent the potential population for the impact 
estimates using the best available information at the time of this 
analysis. To the extent that the population can vary, the impacts 
estimated in the following analysis would vary as well.
iii. Impact Analysis
    This section is organized into modules as follows: Module A 
develops earnings levels for the renewal EAD filers, which is a key 
component of the impacts we estimate. Module B focuses on the impact 
simulations for the impacted population's labor earnings impacts and is 
divided into two sections: (1) labor earnings, and (2) labor turnover 
cost. Module C collates the monetized impacts and discounts them over 
the course of the five fiscal years in which the impacts could accrue. 
Module D concludes with consideration of other possible effects.
a. Module A. Earnings of Renewal EAD Applicants
    USCIS expects two broad types of impacts from this final rule that 
are estimated and quantified. First, there will be impacts to eligible 
individual EAD holders in terms of their ability to maintain labor 
earnings. Second, impacts will accrue to businesses that employ the EAD 
holders in maintaining continuity of employment and thus avoiding labor 
turnover costs. A core component of both impacts is the earnings of the 
renewal EAD filers, which figure prominently into the monetized 
estimates. Since there is likely to be variation in earnings applicable 
to the population, in this module we cover the methodology to develop a 
range for earnings bounded by a lower and upper level.
    Because many of the individuals renewing EADs would be relatively 
new entrants to the labor force, we would not expect most of them to 
earn very high-tier wages. The Federal minimum wage is currently $7.25 
per hour,\314\ but many States have implemented higher minimum wage 
rates.\315\ However, the Federal Government does not track a nationwide 
population-weighted minimum wage estimate. Individuals 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 they live.
---------------------------------------------------------------------------

    \314\ See DOL, ``Minimum Wage,'' https://www.dol.gov/general/topic/wages/minimumwage (last accessed July 29, 2024).
    \315\ See DOL, ``State Minimum Wage Laws,'' https://www.dol.gov/agencies/whd/minimum-wage/state (last accessed July 29, 2024).
---------------------------------------------------------------------------

    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.\316\
---------------------------------------------------------------------------

    \316\ See BLS, ``May 2023 National Occupational Employment and 
Wage Estimates,'' ``United States,'' https://www.bls.gov/oes/2023/May/oes_nat.htm#00-0000 (last visited Apr. 22, 2024). The 10th, 
25th, 75th and 90th percentile wages are available in the 
downloadable XLS file link.
---------------------------------------------------------------------------

    It is likely however, that some individuals impacted earn wages 
above the minimum. Because the EADs impacted do not include or require, 
at the initial or renewal stage, any data regarding wages, DHS has no 
information from the associated forms concerning earnings, occupations, 
industries, positions, or businesses that may employ such workers. DHS 
can add some robustness to the estimates by incorporating actual data 
concerning the employment of the EAD holders to draw inference on their 
earnings.

[[Page 101253]]

    DHS obtained E-Verify case data for FY 2021 through FY 2023 for the 
EAD categories potentially impacted, which yielded 14.33 million 
records.\317\ These data neither distinguish between an E-Verify case 
for an initial EAD, a renewal EAD, or the E-Verify case result, but 
they do provide information that we can draw from regarding employment. 
The E-Verify data do not provide information on job type or occupation, 
but it does provide information about the primary business activity of 
the EAD holder's employer as categorized by the North American 
Classification System (NAICS).
---------------------------------------------------------------------------

    \317\ DHS, USCIS, Immigration Records and Identity Services 
Directorate (IRIS), Verification Division; (Oct. 12, 2023, for FYs 
2021 and 2022 and Apr. 11, 2024, for FY 2023).
---------------------------------------------------------------------------

    Analysis of the E-Verify case data shows that they 
disproportionately accrued to a small subset of activity. Of 107 
represented economic activities, only 3 exhibited shares of cases 
higher than 10 percent--Professional, Scientific, & Technical Services 
(25.2 percent), Other Information Services (19.6 percent), and 
Administrative and Support Services (12.4 percent). Moreover, the upper 
quartile (75th percentile) is reached with just eleven activities. The 
average individual share across these eleven activities was 6.9 
percent, while for the entire remainder the individual average was 0.3 
percent. Given this concentration, we will center the analysis on the 
activities comprising the upper quartile.
    In Table 13 we present the activities, followed by the level of 
activity applicable to the respective the North American Industry 
Classification System (NAICS) code from the BLS. We rescaled the shares 
of the activities according to the total number of records for the 
upper quartile (10.52 million) and obtained the July 2023 average 
hourly wage for the activities of all employees within the relevant 
NAICS codes from BLS.\318\ We then calculated a weighting factor input, 
which is the product of the wage and the rescaled share. Summing along 
the final column yields an hourly wage of $42.90, which will apply as 
the upper earnings bound for this analysis, noting that it is 36.28 
percent higher than the national average wage weighted across all 
occupations, of $31.48.\319\
---------------------------------------------------------------------------

    \318\ BLS, ``Industries at a Glance,'' ``Industries by 
Supersector and NAICS Code,'' https://www.bls.gov/iag/tgs/iag_index_naics.htm (last visited Apr. 22, 2024).
    \319\ The national average wage is found in the ``May 2023 
National Occupational Employment and Wage Estimates'' in the BLS 
Occupational Employment and Wage Statistics (OEWS) portal, https://www.bls.gov/oes/2023/May/oes_nat.htm#00-0000 (last updated Apr. 3, 
2024). Relevant calculation: ((42.90 / 31.48) -1) x 100.

                                                Table 13--Derivation of Upper Bound for Hourly Wage \320\
--------------------------------------------------------------------------------------------------------------------------------------------------------
             Economic activity                NAICS code                Level                Share (%)    Cumulative (%)    Wage \321\     Weight factor
--------------------------------------------------------------------------------------------------------------------------------------------------------
Professional, Scientific, & Technical               541000  subsector...................            33.3            33.3          $51.21          $17.04
 Services.
Other Information Services................          519100  industry....................            25.8            59.1           44.14           11.40
Administrative & Support Services.........          561000  subsector...................            16.4            75.5           26.81            4.40
Internet Service providers, Web Search              518200  industry....................             7.4            82.9           53.78            3.98
 Portals, & Data Processing.
Educational Services......................          611000  subsector...................             3.0            86.0           35.00            1.07
Food Services & Drinking Places...........          722000  subsector...................             2.7            88.7           19.62            0.54
Nursing & residential Care Facilities.....          623000  subsector...................             2.7            91.4           24.47            0.66
Publishing Industries (non-internet)......          511000  subsector...................             2.3            93.7           54.45            1.26
Specialty Trade Contractors...............          238000  subsector...................             2.4            96.1           35.50            0.84
Hospitals.................................          622000  subsector...................             2.0            98.1           41.23            0.84
Management of Companies/Enterprises.......          550000  sector......................             1.9           100.0           46.38            0.87
                                           -------------------------------------------------------------------------------------------------------------
    Sum (rounded).........................  ..............  ............................  ..............  ..............  ..............           42.90
--------------------------------------------------------------------------------------------------------------------------------------------------------

    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 U.S. workers.\322\ 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.\323\ Therefore, using the benefits-to-wage multiplier, DHS 
calculates the total rate of compensation for individuals at the high 
end of the range as $62.21. 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.\324\
---------------------------------------------------------------------------

    \320\ There are some technical details applicable to Table 13. 
The title of the activity shown is in a few cases abbreviated for 
space consideration. Otherwise, they reflect exactly what was 
recorded in the E-Verify data. For the activities shown comprising 
the upper quartile, from the first level analysis one activity, Non-
store Retailers, was dropped, and ``replaced'' by Management of 
Companies/Enterprises. The reason this was conducted is that in the 
recent (2022) revision to the NAICS codes, Non-store Retailers was 
eliminated. Many such revisions to activities have been made, and 
the BLS will often describe what revised activity(ies) in the update 
ensconce the former classification. In this case, the removed 
activity consists of three current industry groups, Electronic 
Shopping and Mail-Order Houses (NAICS 4541), Vending Machine 
Operators (NAICS 4542), and Direct Selling Establishments (NAICS 
4543). However, the BLS does not provide wage data applicable to 
these industry groups (see https://www.bls.gov/iag/tgs/iag454.htm). 
In addition, internet Service providers, Web Search Portals, & Data 
Processing appears to apply to a dated 2002 NAICS application, and 
was changed in a 2007 revision to ``Data Processing, Hosting, and 
Related Services'' subsector (see https://www.bls.gov/iag/tgs/iag518.htm).
    \321\ July 2023 average hourly wages from the following: https://www.bls.gov/iag/tgs/iag54.htm; https://www.bls.gov/iag/tgs/iag519.htm; https://www.bls.gov/iag/tgs/iag561.htm; https://www.bls.gov/iag/tgs/iag518.htm; https://www.bls.gov/iag/tgs/iag61.htm; https://www.bls.gov/iag/tgs/iag722.htm; https://www.bls.gov/iag/tgs/iag623.htm; https://www.bls.gov/iag/tgs/iag511.htm; https://www.bls.gov/iag/tgs/iag238.htm; https://www.bls.gov/iag/tgs/iag622.htm; https://www.bls.gov/iag/tgs/iag55.htm. For Educational Services, the average earnings are 
reported annually for five specific occupations, and the hourly wage 
was derived by dividing the annual salary by 2,080 annual work hours 
(see https://www.bls.gov/iag/tgs/iag61.htm) (obtained Apr. 22, 
2024).
    \322\ See BLS, Economic News Release, ``Employer Costs for 
Employee Compensation--March 2024,'' Table 1. Employer costs for 
employer compensation by ownership, p. 4, https://www.bls.gov/news.release/archives/ecec_06182024.pdf (last visited June 18, 
2024).
    \323\ The benefits-to-wage multiplier is calculated as follows: 
(Total Employee Compensation per hour) / (Wages and Salaries per 
hour) = $46.14 / $31.72 = 1.45 (rounded). See BLS, Economic News 
Release, ``Employer Costs for Employee Compensation--March 2024,'' 
Table 1. Employer costs for employer compensation by ownership, p. 
4, https://www.bls.gov/news.release/archives/ecec_06182024.pdf (last 
visited June 18, 2024).
    \324\ The calculation of the benefits-weighted 10th percentile 
hourly wage estimate: $13.97 per hour x 1.45 benefits-to-wage 
multiplier = $20.2565 = $20.26 (rounded) per hour.

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

[[Page 101254]]

b. Module B. Impacts That Could Accrue to Labor Earnings
1. Earnings Impact to EAD Holders
    There are three core inputs (``components'' or ``variables'') 
requisite to estimate the impacts that could accrue to labor 
compensation: the lapse-duration, earnings, and the impacted 
population.
    All three core inputs require some adjustments to make them as 
salient as possible. Foremost, the lapse-durations are in calendar 
days, hence we make an adjustment to account for a full-time 8-hour 
workday and 5-day workweek. However, not all U.S. workers are employed 
full-time, so we also 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.\325\ This figure is 85.8 percent of 
a 40-hour workweek.
---------------------------------------------------------------------------

    \325\ BLS, Economic News Release, ``The Employment Situation--
June 2024,'' www.bls.gov/news.release/archives/empsit_07052024.htm 
(last visited July 5, 2024).
---------------------------------------------------------------------------

    As it relates to the core variable, population, the assessments of 
possible impacts rely on the assumption that everyone who was approved 
for an EAD under the relevant categories entered the labor force. DHS 
believes this assumption is justifiable because applicants, with few 
exceptions, would generally not have expended the direct filing (for 
the pertinent EAD categories in which there is a filing fee) and time-
related opportunity costs associated with applying for an EAD if they 
did not expect to recoup an economic benefit. Realistically, however, 
individuals might not be employed for any number of other reasons not 
specifically relevant to this action. The national unemployment rate as 
of June 2024 is 4.1 percent.\326\ There is constant and considerable 
job turnover in the labor market even when the unemployment rate is 
low. Individuals could be unemployed due to this normal turnover or 
from any number of case-specific factors and conditions. As such, we 
believe it is reasonable to scale the population to account for current 
unemployment, which is conducted by integrating the employment rate, as 
unity minus 0.041, to arrive at 0.959.
---------------------------------------------------------------------------

    \326\ BLS, Economic News Release, ``The Employment Situation--
June 2024,'' www.bls.gov/news.release/archives/empsit_07052024.htm 
(last visited July 5, 2024).
---------------------------------------------------------------------------

    DHS scales the baseline population by the unemployment rate and the 
lapse rate--the percentage of the affected renewal population that 
might still experience a lapse in EAD even with the TFRs--to achieve 
the population likely to avoid a lapsed EAD with those rules. The 
sensitivity analysis discussed in Tables 11 and 12 reveals that the 
percentage of EADs that would lapse under the 540-day automatic 
extension period varies. As such, the rate that would not lapse also 
varies. For the baseline population and lapse rate we rely on the 
triangle distribution. This distribution is ideal for these inputs 
because it sets a minimum and maximum value around a center point 
(``likeliest'' value). In our calibration, the center point is the 
baseline value. For the population, the approximate minimum is 306,000, 
maximum is 468,000, and the center point is 388,000. For the lapse 
rate, the minimum is 10.9 percent, maximum is 12.4 percent, and the 
center point is 11.9 percent.\327\ See Table 11.
---------------------------------------------------------------------------

    \327\ Low bound: 33,506 lapses with the rule/306,016 without; 
Primary: 45,975 lapses with the rule/387,750 without; Upper bound: 
58,029 lapses with the rule/468,104 without.
---------------------------------------------------------------------------

    DHS is interested in estimating the mean and a range for the 
impacts that are likely to be realized and employs a simulation 
approach. For the earnings we rely on the uniform distribution. This is 
a discrete distribution, which essentially means that any value in the 
range has the same probability as being selected as any other value. 
This structure is chosen because we have no evidence or data to suggest 
that the earnings would tend to cluster at either the low or high end 
of the range.
    We analyzed data provided by the USCIS Office of Performance and 
Quality to estimate lapse-durations by the size of the population that 
could be impacted.\328\ We began by forecasting monthly filing volumes 
over the period of analysis based on historical filing patterns and 
expected EAD expirations by month. We also estimated average monthly 
officer completions based on a twelve-month period between July 2023-
June 2024. Specifically, for the period April 2024 through March 2027, 
OPQ projected the time interval between the date an EAD would expire 
and when it would eventually be adjudicated (re-approved) based on the 
average monthly officer completion rates.\329\ Because USCIS generally 
adjudicates applications in the order of the date received, for each 
month in the analysis we calculated the pending inventory by adding 
forecasted receipts and subtracting average officer completions. Using 
this information, we are able to estimate the number of pending 
applications that would expire each month and the estimated amount of 
time until the expired EADs would be adjudicated (i.e., the lapse 
duration). For the entire batch of OPQ-produced durations, we utilized 
the Oracle Crystal Ball[supreg] Modelling and Simulation Software 
(``OCB'') to analyze the data. The data analysis batch fit tool in OCB 
indicates that the Gamma density function provides the best fit.\330\
---------------------------------------------------------------------------

    \328\ Source: DHS, USCIS, OPQ, Claims 3 database; data provided 
July 11, 2024.
    \329\ These projections were for the A03, A05, A10, C08, C09, 
and C10 classifications.
    \330\ OCB ranks density fit according to internal routines that 
evaluate the appropriateness of several tests according to features 
of the data. In this case, the Gamma density function fits the data 
best based on all continuous distributions subject to a scoring 
method applicable to the test statistic of the Anderson-Darling (A-
D) test, which in this case is 20.661. The Gamma distribution is a 
member of the exponential distributions and is applicable in 
situations where the data displays considerable variance, is 
restricted to positive values, and is skewed to the right 
(positively skewed). It is frequently utilized in analyses to 
predict durations and wait times until future events occur.
---------------------------------------------------------------------------

    DHS operates under the assumption that the underlying data 
structure does not change over the period of analysis. The benefit of 
the Gamma distribution is that the location parameter is generally 
close to the minimum value, which will be consistent (in time), and the 
scale parameter represents the mean, which is generally scalable. The 
key shift factor that will change in the future is that the average 
duration will change. To obtain a viable mean for this specific 
analysis, we divided the number of EADs lapsing by duration into the 
total number that could lapse over the entire period to obtain 
individual weighting factors. Multiplying each weight factor by the 
lapse duration and summing over all data points yielded a weighted 
average lapse duration of 137 days.
    Above, we have described the adjustments made to the population to 
account for unemployment and employment lapses that may still happen to 
wages to account for benefits, and to the lapse duration to account for 
the work week and hours worked. In practice, it is not necessary to 
make the adjustments to the core inputs directly or even sequentially. 
The reason is that the inputs (core and incumbent adjustment factors) 
interact in the estimation procedure multiplicatively, hence they can 
be abridged into a single equation and nested compactly as a ``one-
step'' routine in the software program.
    The inputs and settings for the estimates are encapsulated in Table 
14. In practice there are two modules (populations) that will comprise 
the earnings impacts. The Department believes the impacts will be 
beneficial to EAD holders as ``preserved'' or ``stabilized'' earnings. 
For EADs that the 540-day automatic extension will

[[Page 101255]]

prevent from lapsing, the duration input is the Gamma density tuned to 
the parameters produced by the software and truncated at the upper end 
by a value of 360 (days), since the Gamma curve is infinite in its 
upper tail. However, individuals with EADs that may still lapse would 
also incur a benefit of being able to work exactly 360 days longer than 
they otherwise would--there is no variation or distribution, as the 
extra days is the point value of 360 days. There are any number of ways 
to derive an expression capturing the two population modules that may 
still incur stabilized earnings, i.e., (a) those that would be 
prevented from lapsing, and (b) those that would still lapse. In the 
technical appendix accompanying this rulemaking, we develop the system 
from its long form into a compact nested equation, which is the product 
of two terms, as is shown in Table 14. The combined employment 
``combined'' scalar is developed to abridge all non-varying inputs 
common to both modules as a single input for purpose of brevity.

                                Table 14--Model for Estimation of Earnings Impact
----------------------------------------------------------------------------------------------------------------
                           Input                                   Structure                   Settings
Baseline Population (P)...................................  Triangle distribution..  Min: 306,000.
                                                                                     Max: 468,000.
                                                                                     Likeliest: 388,000.
Lapse rate (L)............................................  Triangle distribution..  Min: 10.9%.
                                                                                     Max: 12.4%.
                                                                                     Likeliest: 11.9%.
Hourly wage (W)...........................................  Uniform distribution...  Min: $13.97.
                                                                                     Max: $42.90.
Lapse Durations:..........................................  DS: Gamma density......  DS: Gamma density
DS: EADs saved from lapse.................................  DL: Point value........  Location: 0.96.
DL: EADs that lapse.......................................                           Scale: 137.0.
                                                                                     Shape: 1.047.
                                                                                     Max: 360.
                                                                                     D: 360.
Combined scalar...........................................  Point value............  Benefits multiplier (B):
                                                                                      1.45.
                                                                                     Workweek time (T): 5 / 7
                                                                                      days = 0.714.
                                                                                     Average hours (H): 34.3 /
                                                                                      40 hours = 0.858.
                                                                                     Full time day hours (F):
                                                                                      8.0.
                                                                                     Employment rate (E): 1 -
                                                                                      0.041 = 0.959.
                                                                                     Scalar (S) = B x T x H x F
                                                                                      x E = 6.82.
----------------------------------------------------------------------------------------------------------------


 
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
Nested equation...........................................................                  {(W x S x P) x ( DS - (L x (DS - DL))){time}
                                                                           -----------------------------------------------------------------------------
Results summary...........................................................                 Forecast values (millions, undiscounted \331\)
                                                                           -----------------------------------------------------------------------------
                                                                                        Range level        Preserved Earnings   Taxes = (impact x 0.153)
                                                                                                                       Impact                    / 1.45
                                                                           -----------------------------------------------------------------------------
                                                                                                low                  $2,539.2                    $267.9
                                                                           -----------------------------------------------------------------------------
                                                                                            average                 $10,739.4                  $1,133.2
                                                                           -----------------------------------------------------------------------------
                                                                                               high                 $29,166.2                  $3,077.5
                                                                           -----------------------------------------------------------------------------
                                                                              Impact type: stabilized earnings to individuals
                                                                              Contribution to forecast variance:
                                                                            Lapse duration = 77.0%
                                                                            Hourly wage = 21.4%
                                                                            Lapse rate: negligible
                                                                            Population: 1.6%
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: USCIS analysis (7-25-2024).

    DHS utilized OCB estimate stabilized earnings using the settings 
encapsulated in Table 14. OCB repeatedly calculates results using a 
different set of random values from the range of values and probability 
distributions described in Table 14 above to build a model of possible 
results. We ran 100,000 randomized seed trials, which is more than 
sufficient to generate a 95 percent level of precision in the results.
---------------------------------------------------------------------------

    \331\ The low and high values reflect a 95 percent certainty 
bound, which captures the distribution specific values between the 
2.5th and 97.5th percentiles.

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

[[Page 101256]]

[GRAPHIC] [TIFF OMITTED] TR13DE24.074

    Based on the simulation, and as shown in Figure 3, the expected 
value (which is the mean of probabilistic-based forecast values) for 
stabilized earnings is $10.7 billion.\332\ We also generated a 95 
percent certainty range, which reports $2.5 billion to $29.2 billion. A 
sensitivity analysis that scores the inputs in terms of how much 
variation in each contributes to fluctuation in the forecasted values 
reveals that the lapse-durations (that vary) contributed at the highest 
rate (77.0 percent of the total variation), followed by wage (21.4 
percent), while the population contributed a small 1.6 percent of the 
variation (see Table 14 for more information). DHS believes that the 
earnings impact, which can be thought of as ``stabilized'' or 
``preserved'' earnings to renewal EAD applicants, will be beneficial to 
the EAD holders, as the 540-day automatic extension would prevent a 
lapse in their employment authorization and an incumbent interruption 
of their labor compensation.\333\
---------------------------------------------------------------------------

    \332\ The certainty level is based on the entire range of 
forecast values, so the 95 percent certainty range is the range 
between which 95 percent of forecasted values are expected to fall, 
regardless of proximity to the mean. Roughly speaking, the 95 
percent certainty bound would generally capture the distribution-
specific forecast values lying between the 2.5th and 97.5th 
percentiles.
    \333\ DHS notes that the estimated earnings impact may be 
slightly understated for the following reason. As of the date of the 
current analysis, about 0.89 percent of the baseline population 
(387,750), or, about 3,468 cases, have been prevented from lapsing. 
These cases are applicable to filings between the end of the 2022 
TFR and effective date of the 2024 TFR (October 27, 2023-April 7, 
2024). It is difficult to parse out the true impact because as of 
the present they have benefitted from a part of the TFR and still 
have some benefit to accrue (which would be the time between the 
present and the time at which their EAD would be adjudicated). It is 
likely that some of these would have lapsed for longer than the 
average we use for the broad population (in the absence of this 
final rule and the 2022 and 2024 TFRs).
---------------------------------------------------------------------------

    If, without the 2022 and 2024 TFRs, businesses would not have been 
able to find replacement labor for the positions the affected renewal 
EAD applicants would have lost if they had experienced a gap in 
employment authorization and/or employment authorization documentation, 
then the unperformed labor would have resulted in a reduction in taxes 
from employers and employees to governments. Accordingly, the 
stabilized earnings derived from the TFRs, and estimated above, will 
prevent such a reduction in taxes. It is challenging to quantify 
Federal and State income tax impacts of employment in the labor market 
scenario because individual and household tax situations vary widely as 
do the various State income tax rates.\334\ But DHS is able to estimate 
the potential contributory effects on employment taxes, namely Medicare 
and Social Security, which have a combined tax rate of 7.65 percent 
(6.2 percent and 1.45 percent, respectively).\335\ With both the 
employee and employer paying their respective portion of Medicare and 
Social Security taxes, the total estimated level of tax transfer 
payments from employees and employers to Medicare and Social Security 
is 15.3 percent.
---------------------------------------------------------------------------

    \334\ 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. 3, 2022).
    \335\ The various employment taxes are discussed in more detail, 
see Internal Revenue Service, ``Understanding Employment Taxes,'' 
https://www.irs.gov/businesses/small-businesses-self-employed/understanding-employment-taxes (last updated May 30, 2024). See 
Internal Revenue Service ``Publication 15,'' ``(Circular E), 
Employer's Tax Guide'' (June 7, 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.
---------------------------------------------------------------------------

    DHS estimates the tax impacts on the unburdened earnings basis. 
This is done 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.\336\ If, without the 2022 and 2024 
TFRs, all employers would have been unable to find replacement labor 
for the position the renewal EAD applicant filled, the TFRs will 
prevent a reduction in employment taxes from employers and employees to 
the Federal Government of $1.1 billion, but could range from $0.3 
billion to $3.1 billion, in undiscounted terms. The actual value of tax 
impacts will depend on the number of affected EAD holders that 
businesses would have been able to easily find reasonable labor 
substitutes

[[Page 101257]]

for in the absence of any change to the automatic extension period.
---------------------------------------------------------------------------

    \336\ 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.
---------------------------------------------------------------------------

    There are several caveats to our estimates that could cause the 
true impacts to vary higher or lower. In one way, the estimates are 
likely to be understated. DHS accounted for the duration of the EAD 
lapse, but this is not necessarily the total spell of unemployment 
individuals could face. The BLS reports that the median spell of 
unemployment across all economic sectors is 9.8 weeks, which would be 
68.6 days (unadjusted).\337\ We did not include this because we do not 
know if some portion of individuals may be able to return to their 
previous employers (for example, if the EAD lapse was shorter than the 
median spell of unemployment and if the employer has difficulty finding 
a replacement worker) or, for those who cannot, if they would start the 
search process until they became reauthorized to work. If they did 
not--i.e., they started looking for new work during the lapse, double 
counting would be invoked for some portion of the duration. It may be 
useful to think of the total unemployment spell as being the sum of two 
parts, the EAD lapse and the [job] ``search time.'' We have no data to 
support a determination on when the search process starts, and hence if 
the two parts intersect, and therefore we do not include it. However, 
to the extent that it may be reasonable to assume that many individuals 
would not start looking for work until after they became re-authorized 
to work, incorporating the ``search time'' duration in addition to 
their lapse duration would substantially increase the scope of the 
stabilized earnings impacts.
---------------------------------------------------------------------------

    \337\ BLS, Economic News Release, ``The Employment Situation--
June 2024,'' www.bls.gov/news.release/archives/empsit_07052024.htm 
(last visited July 5, 2024).
---------------------------------------------------------------------------

    Second, in addition to the search time spell of unemployment 
outside of the lapse alone, there are costs to looking for work. There 
are direct costs involved in activities such as resume updating, 
possibly learning new skills, travel to interviews, and so on. There 
are also time-related opportunity costs applicable to the job search. 
DHS does not have salient data or method to allocate the portion of 
individuals that would need to conduct a job search and the portion of 
the search time that could be conducted during the EAD lapse, and thus 
they are not monetized.
2. Labor Turnover Cost Impacts
    The longer automatic extension period provided by the 2022 and 2024 
TFRs is expected to generate a labor turnover cost savings to employers 
of affected EAD holders. DHS bases the assessment of these impacts on 
the assumption that every EAD applicable to the adjusted population 
that would have lapsed without the 2022 and 2024 TFRs would have 
generated an involuntary separation from an employer, and that the 
separation is due to no other factors.
    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.\338\
---------------------------------------------------------------------------

    \338\ For additional descriptions of the components of labor 
turnover costs, see Holly Bengfort, ``Employee retention: The Real 
Cost of Losing an Employee,'' PeopleKeep, (updated April 16, 2024), 
https://www.peoplekeep.com/blog/employee-retention-the-real-cost-of-losing-an-employee (last visited Aug. 21, 2024).
---------------------------------------------------------------------------

    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 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. DHS captures preserved productivity 
savings--proxied by stabilized earnings to applicants--had employers 
not been able to immediately find replacement labor for renewal EAD 
applicants whose EAD would lapse without the longer automatic extension 
period.\339\
---------------------------------------------------------------------------

    \339\ DHS requested public comments on how, or if, that measure 
of productivity may overlap with the types of productivity covered 
in the CAP report but did not receive comment on this specific 
request in the 2024 TFR.
---------------------------------------------------------------------------

    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.\340\ 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.\341\ 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.\342\
---------------------------------------------------------------------------

    \340\ See Heather Boushey and 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/ (last 
visited Aug. 21, 2024).
    \341\ 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 (last visited Aug. 21, 2024). See also Kate 
Heinz, ``The True Costs of Employee Turnover,'' Built In, https://builtin.com/recruiting/cost-of-turnover (last updated July 17, 
2024).
    \342\ See ``The Real Cost of Employee Turnover in 2021,'' Terra 
Staffing Group (Nov. 4, 2020), https://www.terrastaffinggroup.com/resources/blog/cost-of-employee-turnover (last visited Aug. 21, 
2024). See also Louie Andre, ``112 Employee Turnover Statistics: 
2021 Causes, Cost & Prevention Data,'' Finances Online, https://financesonline.com/employee-turnover-statistics/#cost (last visited 
Aug. 1, 2024).
---------------------------------------------------------------------------

    DHS could nest the information provided above into an estimation

[[Page 101258]]

procedure, but it would be beneficial to examine granular data to hone 
the estimates for two reasons. First, it would be valuable to quantify 
the correlation between annual earnings and labor turnover costs and 
incorporate it in the ensuing forecast procedure. Second, it is 
desirable to obtain a distribution for the data--an average and median 
could be gathered from the referenced reporting, but there would be a 
gap in terms of other metrics needed to calibrate a certain 
distribution.
    DHS examined a 2020 report by the Washington Center for Equitable 
Growth, which updated the earlier CAP study results to provide 
information on about thirty-five studies on turnover costs.\343\ We 
selected data points that captured both the annual earnings salary 
(which the study benchmarked to 2019 levels) and turnover costs. We 
then culled the data applicable to salary levels more than the maximum 
in our earnings bound. We note before making any adjustments, 
multiplying the maximum wage ($42.90) by 2,080 average annual hours 
yields a maximum annual earnings figure of $89,232. Twenty-seven 
resulting data points were employed for the analysis. While this may be 
relatively few observations, OCB nevertheless was able to fit a 
lognormal density function to the data, and we are confident in relying 
on the results.\344\ Foremost, 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. Second, on qualitative grounds the 
lognormal distribution is well-suited as a setup, as it is often 
utilized in situations where there is wide variation and there is a 
discrete lower end minimum, further restricted to positive values. 
First, negative values can be ruled out in context--there cannot be 
zero cost to an employee separation--and thus a lower tail cutoff to 
bound to the cost percentage is appropriate. Second, we can reasonably 
conjecture that the costs would tend to cluster near the lower tail of 
the distribution (as outlined in the CAP report), which is amenable to 
the positive skew of the distribution, reinforced by the data resultant 
mean being larger than the median.\345\
---------------------------------------------------------------------------

    \343\ 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, (December 2020), https://equitablegrowth.org/wp-content/uploads/2020/12/122120-turnover-costs-ib.pdf (last visited 
Aug. 21, 2024). The data are found in the methodological appendix, 
located in the Docket for this rulemaking.
    \344\ DHS used the same data source for the turnover costs for 
the 2024 TFR.
    \345\ OCB indicates that the multiple continuous distributions 
are appropriate for the data but ranks the Lognormal distribution 
highest in terms of goodness of fit with an A-D test statistic of t 
= 0.1282 and an associated p-value of 0.971. The three produced 
parameters are as follows: location = -0.03, mean = 0.23, and 
standard deviation = 0.19. The fitted parameters affect the shape 
and position of the distribution.
---------------------------------------------------------------------------

    Additionally, the scatterplots presented in Figures 4A and 4B 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.\346\ Figure 4A plots the cost as a 
percentage of salary, as this is how it is inputted into the 
estimation, while Figure 4B plots the cost in actual dollars, for 
context (the data points utilized are provided in the accompanying 
technical appendix).
---------------------------------------------------------------------------

    \346\ 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 0.028, 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.
[GRAPHIC] [TIFF OMITTED] TR13DE24.075


[[Page 101259]]


[GRAPHIC] [TIFF OMITTED] TR13DE24.076

    To obtain the annual salary we multiply the (non-burdened) wage 
bounds ($13.97 and $42.90) by 2,080 annual full-time hours but make the 
adjustment to account for average hours by scaling by 0.858, as was 
introduced above for stabilized earnings. In addition, we scale the 
baseline population to account for unemployment and lapses that may 
still occur even with a longer automatic extension period; the 2022 and 
2024 TFRs will delay though not prevent separations for employees that 
may still experience a lapse. DHS also recognizes that a certain number 
of individuals may have been terminated or chosen to leave irrespective 
of any change to the automatic extension period and, accordingly, the 
2022 and 2024 TFRs do not prevent such turnover. DHS does not have data 
on the number of renewal EAD applicants that would have been terminated 
from or left their jobs had they not lost employment 
authorization.\347\
---------------------------------------------------------------------------

    \347\ Further, DHS does not have data on the number of EAD 
renewal applicants that have been terminated because their employer 
used an online calculator provided by USCIS to assist in the 
determination of an EAD expiration date. Presumably an employer 
would determine an EAD expiration well in advance of the date for 
business continuation purposes. Regardless, an employer would spend 
time utilizing this optional online calculator with or without this 
rule and is not considered an additional burden for this rule. DHS 
requested public comment on data that could be used to make such an 
adjustment in the 2024 TFR but did not receive any response.
---------------------------------------------------------------------------

    We calibrated the lognormal distribution for the parameters 
produced and calibrated the estimation program according to the below 
input values. The lognormal distribution is infinite in the upper tail, 
and we truncated the cost percentage to 68.7 percent, the highest value 
in the underlying data. The core inputs are the baseline population, 
turnover cost percentage, and the wage (unburdened). In practice, it is 
not necessary to adjust them directly or even sequentially. The reason 
is that all the inputs (core and adjustment factors) interact in the 
estimation procedure multiplicatively, hence they can be abridged into 
a single equation and nested compactly as a ``one-step'' routine in the 
software program as the product of two terms.
    The inputs and settings are collated in Table 15, with the nested 
equation shown as well. The correlation between turnover cost and 
earnings is tuned to 0.421. Imputing the correlation essentially means 
that if a randomly chosen earnings value is high, there is a higher 
probability that a high turnover cost percentage will be selected as 
well and vice versa for lower cost percentages. The table below 
summarizes the entire system--the inputs, their settings, and the 
resulting outputs.

                             Table 15--Model for Estimation of Turnover Cost Impact
----------------------------------------------------------------------------------------------------------------
                            Input                                     Structure                 Settings
Baseline Population (P).....................................  Triangle distribution...  Min: 306,000.
                                                                                        Max: 468,000.
                                                                                        Likeliest: 388,000.
Lapse rate (L)..............................................  Triangle distribution...  Min: 10.9%.
                                                                                        Max: 12.4%.
                                                                                        Likeliest: 11.9%.
Hourly wage (W).............................................  Uniform distribution....  Min: $13.97.
                                                                                        Max: $42.90.

[[Page 101260]]

 
Turnover cost % (C).........................................  Lognormal density.......  Location: -0.03.
                                                                                        Mean: 0.23.
                                                                                        S-dev.: 0.19.
                                                                                        Max: 0.687.
Employment scalar (S).......................................  Point value.............  Average hour adjustment
                                                                                         (H): 0.858.
                                                                                        Full time annual hours
                                                                                         (A): 2,080.
                                                                                        Employment rate (E):
                                                                                         0.959.
                                                                                        Scalar = H x A x E =
                                                                                         1,711.
Correlation.................................................  W, C....................  0.421.
----------------------------------------------------------------------------------------------------------------


 
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
Nested equation...........................................................                            {(W x C x P x S) x (1-L)
                                                                           -----------------------------------------------------------------------------
Results summary...........................................................                    Forecast values (millions, undiscounted).
                                                                           -----------------------------------------------------------------------------
                                                                                                low                   average                      high
                                                                           -----------------------------------------------------------------------------
                                                                                             $310.4                  $3,732.6                 $12,349.2
                                                                           -----------------------------------------------------------------------------
                                                                             Impact type: Cost-savings to employers.
                                                                             Contribution to forecast variance:
                                                                             (a) Turnover cost (%) = 65.3%.
                                                                             (b) Hourly wage = 34.1%.
                                                                             (c) Population and lapse rate = negligible.
                                                                            Number of businesses impacted: 25,500-39,000.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: USCIS analysis, 7-25-2024.

    DHS utilized OCB to estimate labor turnover cost impacts using the 
settings encapsulated in Table 15. We ran 100,000 randomized seed 
trials, which is more than sufficient to generate 95 percent level of 
precision in the results. The results are displayed in Figure 5.
[GRAPHIC] [TIFF OMITTED] TR13DE24.077

    Based on the simulation, the expected value is $3.7 billion, and 
the 95 percent precision bound results in a range of forecasts from 
$0.3 billion to $12.3 billion. The sensitivity analysis reveals that 
variation in the turnover cost percentage of the salary contributed 
about 65.3 percent of the wide certainty range while about 34.1 percent 
was driven by the variance in earnings. The other inputs contributed 
negligibly.
    In addition to the projected cost-savings to businesses reported 
above, DHS can make some estimates of the number of businesses that 
could benefit from the cost-savings. From the E-Verify data utilized to 
develop an upper wage bound, we randomly sampled 451 EAD employers, 
which is more than the requisite 384 needed for a 95 percent level of 
confidence and collected the number of E-Verify cases per EAD

[[Page 101261]]

employer.\348\ The analysis reveals that there were on average twelve 
cases per EAD employer for FY 2023.\349\ If this figure is extrapolated 
to the baseline population, it would indicate that between 25,500 and 
39,000 EAD employers could be impacted over the time period covered by 
the 2022 and 2024 TFRs.
---------------------------------------------------------------------------

    \348\ DHS determined the sample size using a standard 
statistical formula based on the total EAD employer population of 
95,400 in FY 2023 with a 95 percent confidence level and a 5 percent 
confidence interval. This means that there is a 95 percent chance 
that parameters descriptive of the population (e.g., the EAD 
employer population size) are no more than 5 percent different from 
the statistic obtained by the sample.
    \349\ DHS, USCIS, Immigration Records and Identity Services 
Directorate (IRIS), Verification Division, received Apr. 11, 2024.
---------------------------------------------------------------------------

c. Module C. Monetized Impacts for the 2022 and 2024 TFRs, FY 2023 
Through FY 2027
    In Table 16 we collate the undiscounted monetized impacts derived 
from the above sections.

                                     Table 16--Summary of Monetized Impacts
                          [FY 2023 through FY 2027, undiscounted, in $ millions, $2023]
----------------------------------------------------------------------------------------------------------------
                                                    Stabilized    Labor turnover                    Employment
                                                     earnings          cost        Total impacts       taxes
----------------------------------------------------------------------------------------------------------------
Low end.........................................        $2,539.2          $310.4        $2,849.6          $267.9
Average.........................................        10,739.4         3,732.6        14,472.0         1,133.2
High end........................................        29,166.2        12,349.2        41,515.4         3,077.5
----------------------------------------------------------------------------------------------------------------

    Because the 2022 and 2024 TFRs applied to more than one full fiscal 
year, we also apply a discounting framework to the impacts. Since there 
is a one-to-one mapping from the population to the impacts, we can 
derive the yearly allocations directly from the population figures. 
According to our analysis, based on the broad population, the shares of 
impacts allocated to the FYs 2023, 2024, 2025, 2026, and 2027, in 
order, are 0.4, 8.3, 27.8, 39.4, and 24.2 percent.\350\
---------------------------------------------------------------------------

    \350\ These shares are derived by dividing into a total 
population of EADs that could expire (before making any adjustments) 
across the four-year span FY 2023 through FY 2026 of 387,750 by the 
share that could expire in each of those years, in order, 3,654 (0.9 
percent), 79,539 (20.5 percent), 154,375 (39.8 percent), and 150,182 
(38.7 percent). Because the average lapse duration of 137 days is 
37.5 percent of a 365-day year, the stabilized earnings and 
employment taxes may be spread over more than one fiscal year. To 
account for the cost savings accruing to the next fiscal year (the 
remaining 62.5 percent), we then extrapolate this percentage to the 
population for lapses that would begin in the second half of a 
fiscal year. The resulting impacts are spread over FY 2023 through 
FY 2027 in the following shares: 0.4 percent (0.9 percent x 37.5 
percent), 8.3 percent (0.9 percent x 62.5 percent + 20.5 percent x 
37.5 percent), 27.8 percent (20.5 percent x 62.5 percent + 39.8 
percent x 37.5 percent), 39.4 percent (39.8 percent x 62.5 percent + 
38.7 percent x 37.5 percent), and 24.2 percent (38.7 percent x 62.5 
percent). Source: DHS, USCIS, OPQ (July 11, 2024).
---------------------------------------------------------------------------

    Table 17 provides the allocated impacts according to the allocation 
derived above, to account for the average, and low and high ends of the 
certainty bound in order. The table is organized into two sections to 
account for undiscounted terms and those at a 2-percent discount rate. 
We parsed out the stabilized earnings and labor turnover impacts 
separately, as they will embody different types of impacts.
---------------------------------------------------------------------------

    \351\ If, without the TFRs, businesses could not find 
replacement labor for any of the affected EAD holders, the tax 
impacts shown represent the loss in employment taxes this rule would 
prevent. The actual amount will depend on how easily businesses 
would have been able to find replacement labor in the absence of 
these rules.

                     Table 17--Monetized Expected Value Impacts for FY 2023 through FY 2027
                                               [$ millions, 2023]
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
                                                 A. Undiscounted
----------------------------------------------------------------------------------------------------------------
                                                1. Low end bound
----------------------------------------------------------------------------------------------------------------
FY                                                    Stabilized  Labor turnover   Total impacts       Estimated
                                                        earnings                                     taxes \351\
----------------------------------------------------------------------------------------------------------------
2023............................................            $9.0            $1.1           $10.1            $0.9
2024............................................           210.3            25.7           236.0            22.2
2025............................................           704.6            86.1           790.8            74.4
2026............................................         1,000.6           122.3         1,123.0           105.6
2027............................................           614.7            75.1           689.8            64.9
                                                 ---------------------------------------------------------------
    5-year Total................................         2,539.2           310.4         2,849.6           267.9
----------------------------------------------------------------------------------------------------------------
                                                   2. Average
----------------------------------------------------------------------------------------------------------------
FY                                                    Stabilized  Labor turnover           Total           Taxes
                                                        earnings
----------------------------------------------------------------------------------------------------------------
2023............................................           $38.0           $13.2           $51.1            $4.0
2024............................................           889.4           309.1         1,198.5            93.8
2025............................................         2,980.2         1,035.8         4,016.0           314.5
2026............................................         4,232.1         1,470.9         5,703.1           446.6
2027............................................         2,599.7           903.6         3,503.3           274.3
                                                 ---------------------------------------------------------------
    5-year Total................................        10,739.4         3,732.6        14,472.0         1,133.2
----------------------------------------------------------------------------------------------------------------

[[Page 101262]]

 
                                                3. High end bound
----------------------------------------------------------------------------------------------------------------
FY                                                    Stabilized  Labor turnover           Total           Taxes
                                                        earnings
----------------------------------------------------------------------------------------------------------------
2023............................................          $103.1           $43.6          $146.7           $10.9
2024............................................         2,415.4         1,022.7         3,438.0           254.9
2025............................................         8,093.8         3,427.0        11,520.7           854.0
2026............................................        11,493.7         4,866.5        16,360.2         1,212.8
2027............................................         7,060.3         2,989.4        10,049.8           745.0
                                                 ---------------------------------------------------------------
    5-year Total................................        29,166.2        12,349.2        41,515.4         3,077.5
----------------------------------------------------------------------------------------------------------------
                                                 B. 2% discount
----------------------------------------------------------------------------------------------------------------
                                                4. Low end bound
----------------------------------------------------------------------------------------------------------------
FY                                                    Stabilized  Labor turnover   Total impacts       Estimated
                                                        earnings                                           taxes
----------------------------------------------------------------------------------------------------------------
2023............................................            $8.8            $1.1            $9.9            $0.9
2024............................................           202.1            24.7           226.8            21.3
2025............................................           664.0            81.2           745.2            70.1
2026............................................           924.4           113.0         1,037.4            97.5
2027............................................           556.7            68.1           624.8            58.7
                                                 ---------------------------------------------------------------
    5-year Total................................         2,356.1           288.0         2,644.1           248.6
                                                 ---------------------------------------------------------------
    Annualized..................................           499.9            61.1           561.0            52.7
----------------------------------------------------------------------------------------------------------------
                                                   5. Average
----------------------------------------------------------------------------------------------------------------
FY                                                    Stabilized  Labor turnover   Total impacts       Estimated
                                                        earnings                                           taxes
----------------------------------------------------------------------------------------------------------------
2023............................................           $37.2           $12.9           $50.1            $3.9
2024............................................           854.8           297.1         1,151.9            90.2
2025............................................         2,808.3           976.1         3,784.4           296.3
2026............................................         3,909.8         1,358.9         5,268.7           412.6
2027............................................         2,354.6           818.4         3,173.0           248.5
                                                 ---------------------------------------------------------------
    5-year Total................................         9,964.9         3,463.4        13,428.3         1,051.5
                                                 ---------------------------------------------------------------
    Annualized..................................         2,114.1           734.8         2,848.9           223.1
----------------------------------------------------------------------------------------------------------------
                                                6. High end bound
----------------------------------------------------------------------------------------------------------------
FY                                                    Stabilized  Labor turnover   Total impacts       Estimated
                                                        earnings                                           taxes
----------------------------------------------------------------------------------------------------------------
2023............................................          $101.0           $42.8          $143.8           $10.7
2024............................................         2,321.6           983.0         3,304.5           245.0
2025............................................         7,626.9         3,229.3        10,856.2           804.8
2026............................................        10,618.4         4,495.9        15,114.3         1,120.4
2027............................................         6,394.8         2,707.6         9,102.4           674.8
                                                 ---------------------------------------------------------------
    5-year Total................................        27,062.7        11,458.6        38,521.2         2,855.6
                                                 ---------------------------------------------------------------
    Annualized..................................         5,741.6         2,431.0         8,172.6           605.8
----------------------------------------------------------------------------------------------------------------
Note: Numbers may not total exactly due to rounding.

    For the discounted figures, the annualized amounts are the average 
annual equivalence basis.
    Table 18 shows a comparison of stabilized earnings and labor 
turnover between the 2024 TFR and the updated analysis in this final 
rule at a 2-percent discount rate (the figures apply to the means, as 
the lower and upper bounds are not compared).\352\ USCIS projected

[[Page 101263]]

in the 2024 TFR that, without an increase in the automatic extension 
period, approximately 800,000 (mean projection) renewal applicants 
would have been in danger of losing their employment authorization and/
or documentation in the period beginning May 2024 and ending March 
2026. Based on an updated analysis as of July 1, 2024, in the absence 
of this rule, and the hypothetical absence of the 2022 TFR and the 2024 
TFR, USCIS estimates that approximately 388,000 (mean projection) 
renewal EAD applicants would experience a lapse in employment 
authorization and/or employment authorization documentation between 
this rule's July 2023 and March 2026 period of analysis. The decrease 
in projection is primarily attributed to an increase in officer 
completions during the time period between the 2024 TFR analysis 
(October 2023) and this analysis (July 2024), specifically for C08 and 
C09 renewal EAD filings. The decrease in the estimate for renewal EAD 
applicants that would experience a lapse subsequently decreased 
monetized estimates for stabilized earnings and labor turnover in this 
analysis.
---------------------------------------------------------------------------

    \352\ This analysis was conducted using data as of July 1, 2024. 
USCIS updated the analysis with the latest available data, which 
included operational and policy changes since the data used in 
conducting the analysis for the 2024 TFR, such as changes in filing 
behavior, backlogs, and adjudicative capacity. In this analysis, 
USCIS evaluates the affected population (i.e., those expected to 
lapse without an increase in the automatic extension period) during 
a period between July 2023 and March 2026 and therefore it contains 
effects of some of the population affected by the 2022 and 2024 
TFRs. In contrast, the 2024 TFR analysis estimated affected 
populations between May 2024 and March 2026 and contained no effects 
of the populations affected by the 2022 TFR. Accordingly, the scope 
of the affected population in this analysis is larger than that 
analyzed in the 2024 TFR.
    \353\ 89 FR 24628 (Apr. 8, 2024)

      Table 18--Summary of 5-Year Total Stabilized Earnings and Labor Turnover at a 2-Percent Discount Rate
                                                   [$2022-23]
----------------------------------------------------------------------------------------------------------------
                                     2024 TFR        2024 TFR        2024 TFR
                                   ($2022) \353\      ($2023)     Update ($2023)   $ Difference    % Difference
----------------------------------------------------------------------------------------------------------------
Stabilized earnings.............       $29,112.6       $30,044.2        $9,964.9      -$20,079.3           -66.8
Labor turnover..................         5,177.0         5,342.7         3,463.4        -1,879.3           -35.2
                                 -------------------------------------------------------------------------------
    Total.......................        34,289.5        35,386.9        13,428.3       -21,958.6           -62.1
----------------------------------------------------------------------------------------------------------------
Note: The 2024 TFR was indexed to 2023 dollars using the 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-202406.pdf (last visited Aug. 6, 2024). July 2022: 296.276, July 2023: 305.691. Calculations:
  305.691/296.276 = 1.032; $29,112.6 x 1.032 = $30,044.2; $5,117.0 x 1.032 = $5,342.7.
Note: Numbers may not total exactly due to rounding.

d. Module D. Other Impacts
    As explained previously, DHS does not know what the next best 
alternative would have been for businesses had employment authorization 
lapsed for affected EAD holders. Accordingly, DHS does not know the 
proportion of the stabilized labor earnings estimates developed above 
that would represent cost savings to businesses for prevented lost 
productivity or are prevented transfer payments from affected EAD 
holders to replacement labor.\354\ These effects are very difficult to 
quantify and could be influenced by multiple factors, but we will 
address the possibilities at a conceptual level.
---------------------------------------------------------------------------

    \354\ 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 (last visited Aug. 21, 2024).
---------------------------------------------------------------------------

    In the cases where, in the absence of an increase in the automatic 
extension period, businesses would have been able to easily find 
reasonable labor substitutes for the renewal EAD applicants, then the 
impact of these rules is preventing a distributional impact where the 
earnings of affected EAD holders would be transferred to others, who 
might fill in for (and presumably replace) the renewal EAD applicants 
during their earnings lapse. The portion of the total estimate of 
stabilized income that would represent this prevented transfer payment 
will depend on the ability of businesses to have found replacement 
labor in the case of an EAD lapse.
    In the cases where, in the absence of an increase in the automatic 
extension period, businesses would not have been able to easily find 
reasonable labor substitutes for the renewal EAD applicants, then the 
impact of these rules is preventing an associated loss of productivity 
for employers. Therefore, the portion of the total estimate of 
stabilized income that would represent cost savings to employers for 
prevented productivity losses will depend on the ability of businesses 
to have found replacement labor in the case of an EAD lapse. In this 
case, the increase in the automatic extension period may also result in 
additional cost savings to employers for prevented profit losses and 
having to choose the next best alternative to the EAD holder.
    DHS does not know what this next-best alternative may be for those 
companies. However, if the replacement candidate would have been 
substitutable for the affected renewal EAD applicant to a high degree, 
the labor performed by the new candidate would not have resulted in 
changes to profits or productivity. Accordingly, if the replacement 
labor is highly substitutable, we wouldn't expect cost savings for 
productivity loss as a result of employing the next available 
alternative for labor. If, however, the replacement labor is a poor 
substitute and would have decreased productivity, then preventing the 
EAD from lapsing will preserve that productivity.
    The above discussion involves two important points: If employers 
replaced individuals who faced a lapse in their employment 
authorization and/or EAD validity after the automatic extension with 
others in the labor force, then once employment eligibility and the EAD 
was eventually reauthorized the EAD holder would need to conduct a new 
search for a new job. They would thus incur direct costs associated 
with seeking new employment. As discussed above, DHS was not able to 
monetize these potential additional costs.
    DHS does not believe an increase in the automatic extension period 
will adversely affect the U.S. labor market. The 2022 and 2024 TFRs, as 
well as this rule, extend current employment authorization from up to 
180 days to up to 540 days for individuals who are at risk of losing it 
solely because of USCIS processing delays; the increase in the 
automatic extension period does not grant new work authorization to 
additional persons. DHS expects that this change will help to partially 
alleviate the adverse effects that a lapse in employment authorization 
would have on affected current employment-

[[Page 101264]]

authorized individuals and their employers. In FY 2023, 88 percent of 
EAD renewals for affected categories were approved \355\ and all 
renewals, by definition, had a previously approved initial EAD 
application. According to the most recent data (applicable to June 
2024), the U.S. labor force stands at 168,009,000.\356\ The maximum 
population of about 468,000 affected individuals during the period of 
analysis represents 0.30 percent \357\ of the national labor force, 
approximately 412,000 of which would potentially not lapse as a result 
of the actions taken.\358\
---------------------------------------------------------------------------

    \355\ We note that the applicable renewal EAD approval rate from 
FY 2022 for A03, A05, A07, A08, A10, A12, A17, A18, C08, C09, C10, 
C16, C19, C20, C22, C24, C26, and C31 filings was 88 percent. The 
calculation was made from EAD filing data. See Form I-765, 
Application for Employment Authorization, All Receipts, Approvals, 
Denials Grouped by Eligibility Category and Filing Type, FY 2023, 
https://www.uscis.gov/sites/default/files/document/data/i-765_application_for_employment_fy23.pdf (last updated Nov. 2023). 
Due to the increase in backlogs, the renewal EAD approval rate was 
calculated as the number of approvals divided by the sum of 
approvals and denials, rather than the receipts basis. Calculation: 
562,209 / (562,209 + 77,461) = 0.88. We note that this percent may 
be understated because some C09 denials are denied because the 
applicant's Form I-485 was approved, and they are now a lawful 
permanent resident; setting aside C09 adjudications entirely, the 
renewal EAD approval rate would be 92%. Calculation: 516,866 / 
(516,866 + 42,100) = 0.92. Further, the table in the above link 
notes that ``[s]ome applications approved or denied may have been 
received in previous reporting periods.'' It is possible that an 
approval or denial reported in this table for FY 2023 could have 
been from a renewal EAD application submitted in FY 2022.
    \356\ BLS, Economic News Release, ``The Employment Situation--
June 2024, Summary Table A, Household Data, seasonally adjusted, 
Civilian labor force,'' www.bls.gov/news.release/archives/empsit_07052024.htm (July 5, 2024).
    \357\ Calculation: 460,000 / 168,009,000 = 0.0027.
    \358\ Calculation: Likeliest lapse rate =11.9%; 1-11.9% = 88.1%; 
468,000 x 0.881 = 412,308.
---------------------------------------------------------------------------

    Without a change in the automatic extension period, EAD holders who 
remain eligible for employment authorization would encounter delays in 
renewal EADs and either be unauthorized to work for periods of time or 
lack documentation reflecting their employment authorization. This 
change does not make additional categories eligible for employment 
authorization; it simply permanently increases the 180-day timeframe 
for those already eligible for an automatic extension. It mitigates the 
risk that these EAD holders will experience gaps in employment 
authorization and/or EAD validity as a result of USCIS processing 
delays. Accordingly, stabilized earnings for these EAD holders may also 
relieve the support network of the applicants for any monetary or other 
support that would have been necessary during such a period of 
unemployment. This network could include public and private entities, 
and it may comprise family and personal friends, legal services 
providers and advisors, religious and charity organizations, State and 
local public institutions, educational providers, and nongovernmental 
organizations. DHS believes these impacts would accrue as cost-savings 
to the noncitizen EAD holders and their families.
3. Alternatives Considered
    As described earlier in this preamble, DHS again explored the 
option of increasing the automatic extension period to at least up to 
730 days. However, many of the same risks outlined in the 2024 TFR 
still remain, including risks that would potentially have an associated 
burden or cost to employers:
     TPS designations and associated EAD benefits cannot be 
granted for longer than 18 months (which is approximately 540 days).
     Having up to 730 days of an automatic extension period for 
one group of renewal EAD applicants, and 540 days for others increases 
the risk of confusion. Employers would be required to understand and 
adhere to additional different extension periods depending on the 
eligibility category on the EAD the worker possessed and when and under 
what category the renewal EAD application was filed.
     The longer the period of time before an employer has to 
reverify a noncitizen employee whose employment authorization and/or 
documentation is automatically extended, the greater the risk they 
could unknowingly employ someone whose employment authorization has 
ended.\359\
---------------------------------------------------------------------------

    \359\ Renewal EAD applications are filed by the noncitizen, so 
employers do not know when or if the application is approved. 
Employers usually must rely on the employee to provide the 
information.
---------------------------------------------------------------------------

     Both employers and applicants are already familiar either 
with the up to 540-day extension under the 2022 and 2024 TFRs. The up 
to 540-day extension provided under the 2022 TFR continues to be 
effective for some applicants until October 2025 and the 2024 TFR is 
effective for some applicants until September 2027; having other 
validity periods in this Final Rule may be confusing to applicants and 
employers.
     Form I-797C, Notice of Action, the document that the 
renewal EAD applicant must present along with the expired or expiring 
eligible EAD to show that the EAD has been automatically extended, is a 
non-secure document and DHS prefers shorter validity periods for 
temporary documents that are non-secure.\360\
---------------------------------------------------------------------------

    \360\ See 89 FR 24648 (Apr. 8, 2024).
---------------------------------------------------------------------------

    DHS provides Table 19 to elucidate the share and number of EADs 
that could lapse at the baseline population value (388,000) under 
different automatic extension periods.

                           Table 19--Approximate EAD Lapses Under Different Extensions
----------------------------------------------------------------------------------------------------------------
                                                          Total automatic
                                                           extension days   Approximate share     Approximate
        Extension days (above current 180 days)              (including      that could lapse  number that could
                                                         current 180 days)      (percent)            lapse
----------------------------------------------------------------------------------------------------------------
0......................................................                180                100            388,000
30.....................................................                210                 85            331,000
60.....................................................                240                 71            276,000
90.....................................................                270                 58            225,000
120....................................................                300                 47            183,000
150....................................................                330                 37            145,000
180....................................................                360                 28            108,000
210....................................................                390                 21             81,000
360....................................................                540                 12             46,000
540....................................................                720                  1              3,000
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis of renewal EAD filing data, provided by DHS, USCIS, OPQ, Claims 3 database; data provided
  July 11, 2024.


[[Page 101265]]

    Even with the increase in the automatic extension period granted 
under the 2022 and 2024 TFRs an estimated 46,000 EADs could still lapse 
under status quo conditions. We project that the ``near term'' cases 
that could still lapse during July through December 2024 are 
applications filed under the 2022 TFR and have been pending at least 18 
months after their EAD expiration date. Extensions below 540 days would 
stand to generate larger numbers of potential lapses. Therefore, DHS 
did not consider lower extensions as alternatives.
    DHS has not quantified the net benefits from an alternative of 
granting extensions greater than 540 days to all or some EAD 
categories. Qualitatively, although Table 19 shows the approximate 
number of EADs that could lapse is further reduced using a 720-day 
bridge (540-day extension + the existing 180 days) and thus attendant 
benefits would be greater, policy and operational constraints exist. As 
discussed earlier in this preamble, a longer automatic extension period 
would result in a larger number of employers using 720 or 730 days as 
their Form I-9, Employment Eligibility Verification, reverification 
date, even though only about thirteen percent of affected applicants 
could need longer than 540 days.\361\
---------------------------------------------------------------------------

    \361\ From Table 19, the approximate number that could lapse at 
a 540-day automatic extension is 46,000 and 3,000 at a 720-day 
automatic extension. 46,000 + 3,000 = 49,000. 49,000 / 388,000 = 
0.126.
---------------------------------------------------------------------------

    Additionally, TPS designations, and thus associated-EAD benefits 
are most often granted for 18 months (approximately 540 days) and 
cannot be granted for longer. Furthermore, the Department believes that 
a longer period could cause confusion and potential mistakes by 
employers conducting employment eligibility verifications. While a 
hypothetical carve out might allow for all non-TPS EAD extensions of 
greater duration, DHS has limited information on the potential burdens 
such a carve out could create by deviating from the 540-day extension 
that applicants and their U.S. employers are familiar with from the 
2022 and 2024 TFRs.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA), requires an agency to prepare and make available to the 
public a regulatory flexibility analysis that describes the effect of 
the rule on small entities (i.e., small businesses, small 
organizations, and small governmental jurisdictions). The RFA's 
regulatory flexibility analysis requirements apply only to those rules 
for which an agency is required to publish a general notice of proposed 
rulemaking pursuant to 5 U.S.C. 553 or any other law. See 5 U.S.C. 
604(a). DHS did not issue a notice of proposed rulemaking for this 
action.\362\ Therefore, a regulatory flexibility analysis is not 
required for this rule. Nonetheless, DHS has determined that this rule 
will not have a significant economic impact on a substantial number of 
small entities. This rule directly regulates individual noncitizens 
eligible for an automatic extension period with a timely filed EAD 
renewal application. The rule indirectly impacts certain employers if, 
in the future, processing times increase beyond the current 180-day 
automatic extension period. The longer automatic extension period 
provided by this rule will prevent adverse impacts to employers of 
affected individuals that would result from a lapse in the employee's 
employment authorization. However, the RFA's regulatory flexibility 
analysis requirements apply only to small entities subject to the 
requirements of the rule.\363\ The individual noncitizens subject to 
the requirements of this rule are not small entities as defined in 5 
U.S.C. 601(6). Accordingly, DHS certifies that this rule does not have 
a significant economic impact to a substantial number of small 
entities.
---------------------------------------------------------------------------

    \362\ See 89 FR at 24650-24654 (explaining the basis for 
bypassing notice and comment for the 2024 TFR).
    \363\ Small Business Administration, A Guide for Government 
Agencies: How to Comply with the Regulatory Flexibility Act, August 
2017, page 22, https://advocacy.sba.gov/wp-content/uploads/2019/07/How-to-Comply-with-the-RFA-WEB.pdf (last visited September 26, 
2024).
---------------------------------------------------------------------------

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. 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.\364\ 
The inflation adjusted value of $100 million in 1995 is approximately 
$200 million in 2023 based on the Consumer Price Index for All Urban 
Consumers (CPI-U).\365\ This rule is exempt from the written statement 
requirement, because DHS did not publish a notice of proposed 
rulemaking for this rule.
---------------------------------------------------------------------------

    \364\ See 2 U.S.C. 1532(a).
    \365\ 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-202406.pdf (last visited Aug. 6, 2024). Calculation of inflation: 
(1) Calculate the average monthly CPI-U for the reference year 
(1995) and the current year (2023); (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 2023-
Average monthly CPI-U for 1995) / (Average monthly CPI-U for 1995)] 
x 100 = [(304.702-152.383) / 152.383] = (152.319/152.383) = 
0.99958001 x 100 = 99.96 percent = 100 percent (rounded). 
Calculation of inflation-adjusted value: $100 million in 1995 
dollars x 2.00 = $200 million in 2023 dollars.
---------------------------------------------------------------------------

    This final rule does not contain a Federal mandate as the term is 
defined under UMRA.\366\ The requirements of title II of UMRA, 
therefore, do not apply, and DHS has not prepared a statement under 
UMRA.
---------------------------------------------------------------------------

    \366\ The term ``Federal mandate'' means a Federal 
intergovernmental mandate or a Federal private sector mandate. See 2 
U.S.C. 1502(1), 658(6).
---------------------------------------------------------------------------

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

    Under the Congressional Review Act (CRA), enacted as part of the 
Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 
104-121, the Administrator of the Office of Information and Regulatory 
Affairs has determined that this final rule meets the criteria in 5 
U.S.C. 804(2). The CRA generally provides a 60-day delayed effective 
date for such rules \367\ but an agency can bypass that requirement 
``for good cause.'' \368\ Because this rule makes permanent the 2024 
TFR that would otherwise apply for many months before this final rule 
has a practical effect, DHS has for good cause found that the 60-day 
delay typically required under 5 U.S.C. 801(a)(3)(A) is unnecessary. 
Therefore, consistent with 5 U.S.C. 808(2), this rule will become 
effective on January 13, 2025.
---------------------------------------------------------------------------

    \367\ See 5 U.S.C. 801(a)(3).
    \368\ See 5 U.S.C. 808(2).
---------------------------------------------------------------------------

E. Executive Order 13132 (Federalism)

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

[[Page 101266]]

implications to warrant the preparation of a federalism summary impact 
statement.

F. Executive Order 12988 (Civil Justice Reform)

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

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

    This final rule does not have Tribal implications under Executive 
Order 13175, Consultation and Coordination with Indian Tribal 
Governments, because it would 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.

H. National Environmental Policy Act

    DHS and its components analyze final actions to determine whether 
the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq., 
applies to them and, if so, what degree of analysis is required. DHS 
Directive 023-01 Rev. 01 and Instruction Manual 023-01-001-01 Rev. 01 
(Instruction Manual) \369\ establish the policies and procedures that 
DHS and its components use to comply with NEPA and the Council of 
Environmental Quality (CEQ) regulations for implementing NEPA.\370\
---------------------------------------------------------------------------

    \369\ The Instruction Manual contains DHS's procedures for 
implementing NEPA and was issued November 6, 2014, available at 
https://www.dhs.gov/publication/directive-023-01-rev-01-and-instruction-manual-023-01-001-01-rev-01-and-catex (last visited Jul. 
25, 2024).
    \370\ 40 CFR parts 1500 through 1508.
---------------------------------------------------------------------------

    The CEQ regulations allow 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 (EA) or 
environmental impact statement (EIS).\371\ The Instruction Manual, 
Appendix A lists the DHS Categorical Exclusions.\372\
---------------------------------------------------------------------------

    \371\ 40 CFR 1507.3(e)(2)(ii) and 1501.4.
    \372\ See 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.\373\
---------------------------------------------------------------------------

    \373\ Instruction Manual 023-01 at V.B(2)(a)-(c).
---------------------------------------------------------------------------

    This rule is strictly administrative and procedural and amends 
DHS's existing regulations at 8 CFR 274a.13(d) to permanently increase 
the period that the employment authorization and/or employment 
authorization documentation of certain eligible renewal EAD applicants 
are automatically extended while their renewal applications remain 
pending with USCIS. More specifically, this rule provides that the 
automatic extension period applicable to expiring employment 
authorization and/or EADs for certain applicants who have filed renewal 
EAD applications will be permanently increased from up to 180 days to 
up to 540 days.
    DHS has reviewed the 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 final rule. This final rule is 
limited to increasing the automatic extension period applicable to 
expiring employment authorization and/or EADs for certain renewal 
applicants who have filed a renewal EAD application and is not part of 
a larger DHS rulemaking action.
    Accordingly, DHS finds that the promulgation of this final rule's 
amendments 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.

I. Family Assessment

    DHS has reviewed this rule in line with the requirements of section 
654 of the Treasury General Appropriations Act, 1999.\374\ DHS has 
systematically reviewed the criteria specified in section 654(c)(1), by 
evaluating whether this regulatory action: (1) impacts the stability or 
safety of the family, particularly in terms of marital commitment; (2) 
impacts the authority of parents in the education, nurture, and 
supervision of their children; (3) helps the family perform its 
functions; (4) affects disposable income or poverty of families and 
children; (5) only financially impacts families, if at all, to the 
extent such impacts are justified; (6) may be carried out by State or 
local government or by the family; or (7) establishes a policy 
concerning the relationship between the behavior and personal 
responsibility of youth and the norms of society. If the agency 
determines a regulation may negatively affect family well-being, then 
the agency must provide an adequate rationale for its implementation.
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    \374\ Public Law 105-277, 112 Stat. 2681 (1998).
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    DHS has determined that the implementation of this regulation will 
not negatively affect family well-being and will not have any impact on 
the autonomy and integrity of the family as an institution. DHS 
believes, similar to the 2022 and 2024 EAD TFR, that this final rule 
will create positive effects on the family by mitigating uncertainty 
about continued employment authorization for renewal applicants.

J. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, Public Law 104-13, all 
agencies are required to submit to OMB, for review and approval, any 
reporting requirements inherent in a rule. This rule does not impose 
any new reporting or recordkeeping requirements under the Paperwork 
Reduction Act.
    However, this rule requires the use of USCIS Form I-765. This form 
has previously been approved by OMB under the Paperwork Reduction Act. 
The OMB control number for this information collection is 1615-0040. As 
this is a final rule that only will permanently increase the duration 
of an automatic extension of employment authorization and EADs, USCIS 
does not anticipate a need to update the Form I-765 or to collect 
additional information beyond that already collected on the application 
Form.

VII. List of Subject and Regulatory Amendments

List of Subjects in 8 CFR Part 274a

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

    Accordingly, for the reasons set forth in the preamble, DHS amends 
8 CFR part 274a as follows:

[[Page 101267]]

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

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

    Authority: 8 U.S.C. 1101, 1103, 1105a, 1158, 1184, 1254a, 1324a; 
48 U.S.C. 1806; Pub. L. 101-410, 104 Stat. 890 (28 U.S.C. 2461 
note); Pub. L. 114-74, 129 Stat. 599 (28 U.S.C. 2461 note); 8 CFR 
part 2.


0
2. Amend Sec.  274a.2 by revising the third sentence of paragraph 
(b)(1)(vii) to read as follows:


Sec.  274a.2  Verification of identity and employment authorization

    (b) * * *
    (1) * * *
    (vii) * * * If an Employment Authorization Document (Form I-766) as 
described in 8 CFR 274a.13(d) was presented for completion of the Form 
I-9 in combination with a Notice of Action (Form I-797C), stating that 
the original Employment Authorization Document has been automatically 
extended, reverification applies upon the expiration of the 
automatically extended validity period under 8 CFR 274a.13(d) and not 
upon the expiration date indicated on the face of the individual's 
Employment Authorization Document. * * *
* * * * *

0
3. Amend Sec.  274a.13 by:
0
a. Revising paragraphs (d)(1) introductory text, and (d)(1)(i);
0
b. Revising and republishing paragraph (d)(3); and
0
c. Removing paragraphs (d)(5) and (d)(6).
    The revisions read as follows:


Sec.  274a.13  Application for employment authorization.

* * * * *
    (d) * * *
    (1) Automatic extension of Employment Authorization Documents. 
Except as otherwise provided in this chapter or by law, notwithstanding 
Sec.  274a.14(a)(1)(i), the validity period of an expired or expiring 
Employment Authorization Document (Form I-766) and, for aliens who are 
not employment authorized incident to status, also the attendant 
employment authorization, will be automatically extended for an 
additional period not to exceed 540 days if the request for renewal 
meets all of the criteria listed in paragraphs (d)(1)(i) through (iii) 
of this section and was pending on May 4, 2022, or was properly filed 
on or after May 4, 2022. For renewal applications properly filed and 
adjudicated before May 4, 2022, the validity period of such an expired 
or expiring Employment Authorization Document (Form I-766) and, for 
aliens who were not employment authorized incident to status, also the 
attendant employment authorization, was automatically extended for an 
additional period not to exceed 180 days if the request for renewal met 
all of the criteria listed in paragraphs (d)(1)(i) through (iii) of 
this section. The first day of the automatic extension under this 
paragraph is the day after the expiration date shown on the face of the 
expired or expiring Employment Authorization Document (Form I-766). To 
be eligible for the automatic extension under this paragraph, the 
request must be:
    (i) Properly filed on a form designated by USCIS and as provided by 
form instructions before the expiration date shown on the face of the 
Employment Authorization Document, or, for Temporary Protected Status-
related Employment Authorization Documents (EADs), during the re-
registration filing period described in the applicable Federal Register 
notice;
* * * * *
    (3) Termination. For renewal requests pending on May 4, 2022, or 
properly filed on or after May 4, 2022, the period authorized by 
paragraph (d)(1) of this section automatically terminates the earlier 
of up to 540 days after the expiration date of the Employment 
Authorization Document (Form I-766), or upon issuance of notification 
of a decision denying the renewal request. For renewal applications 
that were properly filed and adjudicated before May 4, 2022, the period 
authorized by paragraph (d)(1) of this section automatically terminated 
upon the earlier of up to 180 days after the expiration date of the 
Employment Authorization Document (Form I-766) or issuance of 
notification of a decision denying the renewal request. Nothing in 
paragraph (d) of this section will affect DHS's ability to otherwise 
terminate any employment authorization or Employment Authorization 
Document, or extension period for such employment or document, by 
written notice to the applicant, by notice to a class of aliens 
published in the Federal Register, or as provided by statute or 
regulation including 8 CFR 274a.14.
* * * * *

Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2024-28584 Filed 12-10-24; 8:45 am]
BILLING CODE 9111-97-P`