26614 Federal Register / Vol. 87, No. 86 / Wednesday, May 4, 2022 / Rules and Regulations 

1Bureau of Labor Statistics data show that, as of 

December 2021, there were 0.6 unemployed persons 

per job opening. U.S. Department of Labor, U.S. 

Bureau of Labor Statistics, Number of unemployed 

persons per job opening, seasonally adjusted (Jan. 

2007 through Jan. 2022), https://www.bls.gov/ 

charts/job-openings-and-labor-turnover/unemp-perjob-opening.htm (last visited Mar. 14, 2022). 

DEPARTMENT OF HOMELAND 

SECURITY 

8 CFR Part 274a 

[CIS No. 2714–22; DHS Docket No. USCIS– 

2022–0002] 

RIN 1615–AC78 

Temporary Increase of the Automatic 

Extension Period of Employment 

Authorization and Documentation for 

Certain Renewal Applicants 

AGENCY: U.S. Citizenship and 

Immigration Services, DHS. 

ACTION: Temporary final rule with 

request for comments. 

SUMMARY: This rule temporarily amends 

existing Department of Homeland 

Security (DHS) regulations to provide 

that the automatic extension period 

applicable to expiring Employment 

Authorization Documents (Forms I–766 

or EADs) for certain renewal applicants 

who have filed Form I–765, Application 

for Employment Authorization, will be 

increased from up to 180 days to up to 

540 days from the expiration date stated 

on their EADs. This increase will be 

available to eligible renewal applicants 

with pending Forms I–765 as of May 4, 

2022, including those applicants whose 

employment authorization may have 

lapsed following the initial 180-day 

extension period, and any eligible 

applicant who files a renewal Form I– 

765 during the 540-day period 

beginning on or after May 4, 2022, and 

ending October 26, 2023. In light of 

current processing times for Forms I– 

765, DHS is taking these steps to help 

prevent renewal applicants from 

experiencing a lapse in employment 

authorization and/or documentation 

while their applications remain pending 

and solutions are implemented to return 

processing times to normal levels. 

DATES: 

Effective date: This temporary final 

rule is effective May 4, 2022, through 

October 15, 2025. 

Submission of public comments: 

Written comments must be submitted 

on or before July 5, 2022. The electronic 

Federal Docket Management System 

will accept comments prior to midnight 

eastern time at the end of that day. 

ADDRESSES: You may submit comments 

on the entirety of this temporary final 

rule package, identified by DHS Docket 

No. USCIS–2022–0002, through the 

Federal eRulemaking Portal: https://

www.regulations.gov. Follow the 

website instructions for submitting 

comments. 

Comments submitted in a manner 

other than the one listed above, 

including emails or letters sent to USCIS 

or DHS officials, will not be considered 

comments on the temporary final rule 

and may not receive a response. Please 

note that USCIS cannot accept any 

comments that are hand-delivered or 

couriered. In addition, USCIS cannot 

accept comments contained on any form 

of digital media storage devices, such as 

CDs/DVDs and USB drives. USCIS is not 

accepting mailed comments at this time. 

If you cannot submit your comment by 

using https://www.regulations.gov, 

please contact Samantha Deshommes, 

Chief, Regulatory Coordination 

Division, Office of Policy and Strategy, 

U.S. Citizenship and Immigration 

Services, Department of Homeland 

Security, by telephone at 240–721–3000 

(not a toll-free call) for alternate 

instructions. 

FOR FURTHER INFORMATION CONTACT: 

Melissa Lin, Branch Chief, Policy 

Development and Coordination 

Division, Office of Policy and Strategy, 

U.S. Citizenship and Immigration 

Services, Department of Homeland 

Security, 5900 Capital Gateway Drive, 

Camp Springs, MD 20746; telephone 

240–721–3000 (not a toll-free call). 

Individuals with hearing or speech 

impairments may access the telephone 

numbers above via TTY by calling the 

toll-free Federal Information Relay 

Service at 1–877–889–5627 (TTY/TDD). 

SUPPLEMENTARY INFORMATION: 

I. Public Participation 

DHS invites you to participate in this 

rulemaking by submitting written data, 

views, or arguments on all aspects of 

this temporary final rule. Comments 

providing the most assistance to DHS 

will reference a specific provision of the 

temporary final rule, explain the reason 

for any recommended change, and 

include data, information, or authority 

that supports the recommended change. 

Comments submitted in a manner other 

than explicitly provided above, 

including emails or letters sent to USCIS 

or DHS officials, will not be considered 

comments on the temporary final rule 

and may not receive a response. 

Instructions: All submissions should 

include the agency name and DHS 

Docket No. USCIS–2022–0002 for this 

rulemaking. Providing comments is 

entirely voluntary. DHS will post all 

submissions, without change, to the 

Federal eRulemaking Portal at https://

www.regulations.gov and will include 

any personal information you provide. 

Because the information you submit 

will be publicly available, you should 

consider limiting the amount of 

personal information in your 

submission. DHS may withhold 

information provided in comments from 

public viewing if it determines that such 

information is offensive or may affect 

the privacy of an individual. For 

additional information, please read the 

Privacy Act notice available through the 

link in the footer of https://

www.regulations.gov. 

Docket: For access to the docket and 

to read comments received, go to 

https://www.regulations.gov, referencing 

DHS Docket No. USCIS–2022–0002. 

You may also sign up for email alerts on 

the online docket to be notified when 

comments are posted or subsequent 

rulemaking is published. 

II. Background 

Operational challenges, exacerbated 

by the emergency measures USCIS 

employed to maintain its operations 

through the height of the COVID–19 

pandemic in 2020, which greatly 

affected operations and staffing, 

combined with a sudden increase in 

Form I–765 filings, have resulted in 

processing times for Form I–765 

increasing to such a level that the 180- 

day automatic extension period for 

Form I–765 renewal applicants’ 

employment authorization and/or EADs 

is temporarily insufficient. For some 

applicants, the extension has already 

expired, while for many others, it is in 

imminent danger of expiring. As a 

result, renewal applicants are losing 

their jobs and employers suddenly are 

faced with finding replacement workers 

during a time when the U.S. economy 

is experiencing more job openings than 

available workers.1 DHS has determined 

that it is imperative to immediately 

increase the automatic extension period 

of employment authorization and/or 

EADs for eligible Form I–765 renewal 

applicants for a temporary period. This 

temporary increase to the automatic 

extension period will avoid the 

immediate harm that otherwise would 

affect tens of thousands of EAD renewal 

applicants and their U.S. employers in 

those cases where USCIS is unable to 

process applicants’ EAD renewal 

applications before the end of the 

current 180-day automatic extension 

period. USCIS is already taking steps to 

more permanently address its backlogs 

for EAD applications and other form 

types, and this temporary increase will 

provide a temporary extension while 


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Federal Register / Vol. 87, No. 86 / Wednesday, May 4, 2022 / Rules and Regulations 26615 

2There are several employment-eligible 

categories that are not included in DHS regulations 

but instead are described in the form instructions 

to Form I–765, Application for Employment 

Authorization. Employment-authorized L 

nonimmigrant spouses are an example. See INA sec. 

214(c)(2)(E), 8 U.S.C. 1184(c)(2)(E). 

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

4See 8 CFR 274a.12(b).These noncitizens are 

issued an Arrival-Departure Record (Form I–94) 

indicating their employment-authorized status in 

the United States and do not file separate requests 

for evidence of employment authorization. 

5See 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’’). 

6See 8 CFR 103.2(a) and 8 CFR 274a.13(a). 

Applicants who are employment authorized 

incident to status (e.g., asylees, refugees, TPS 

beneficiaries) will file Form I–765 to request a Form 

I–766 EAD. Applicants who are filing within an 

eligibility category listed in 8 CFR 274a.12(c) must 

use Form I–765 to request both employment 

authorization and an EAD. 

7See 8 CFR 274a.13(a). 

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

9See 8 CFR 274a.13(b) and 274a.14(a). 

10For example, the status of asylees generally 

continues unless and until it is adjusted to lawful 

permanent resident status, and asylees are 

employment authorized incident to status. 

Therefore, asylees’ employment authorization 

typically will continue beyond the expiration date 

on the EAD, which is issued in 2-year increments. 

On the other hand, a K–1 fiance ́e, while also 

employment authorized incident to status, will 

receive only a 90-day period in K–1 nonimmigrant 

status upon admission to the United States. The 

expiration date of EADs issued to K–1 fiance ́es will 

coincide with the 90-day admission period. 

USCIS works to return to pre-pandemic 

processing times. 

A. Legal Authority 

The Secretary of Homeland Security’s 

(Secretary) authority for the regulatory 

amendments made in this TFR are 

found in: section 274A(h)(3)(B) of the 

Immigration and Nationality Act (INA), 

8 U.S.C. 1324a(h)(3)(B), which 

recognizes the Secretary’s authority to 

extend employment authorization to 

noncitizens in the United States; and 

section 101(b)(1)(F) of the Homeland 

Security Act, 6 U.S.C. 111(b)(1)(F), 

which establishes as a primary mission 

of DHS the duty to ‘‘ensure that the 

overall economic security of the United 

States is not diminished by efforts, 

activities, and programs aimed at 

securing the homeland.’’ In addition, 

section 103(a)(3) of the INA, 8 U.S.C. 

1103(a)(3), authorizes the Secretary to 

establish such regulations as the 

Secretary deems necessary for carrying 

out the Secretary’s authority under the 

INA, and section 214 of the INA, 8 

U.S.C. 1184, including section 214(a)(1), 

8 U.S.C. 1184(a)(1), authorizes the 

Secretary to prescribe, by regulation, the 

terms and conditions of the admission 

of nonimmigrants. 

B. Legal Framework for Employment 

Authorization 

1. Types of Employment Authorization: 

8 CFR 274a.12(a), (b), and (c) 

Whether or not a noncitizen is 

authorized to work in the United States 

depends on the noncitizen’s 

immigration status or other conditions 

that may permit employment 

authorization (for example, having a 

pending application for asylum or a 

grant of deferred action). DHS 

regulations outline three classes of 

noncitizens who may be eligible for 

employment in the United States, as 

follows: 2

• Noncitizens in the first class, 

described at 8 CFR 274a.12(a), are 

authorized to work ‘‘incident to status’’ 

for any employer, as well as to engage 

in self-employment, as a condition of 

their immigration status or 

circumstances. Although authorized to 

work as a condition of their status or 

circumstances, certain classes of 

noncitizens must apply to USCIS in 

order to receive a Form I–766 EAD as 

evidence of that employment 

authorization; 3

• Noncitizens in the second class, 

described at 8 CFR 274a.12(b), also are 

authorized to work ‘‘incident to status’’ 

as a condition of their immigration 

status or circumstances, but generally 

the authorization is valid only for a 

‘‘specific employer;’’ 4 and 

• Noncitizens in the third class, 

described at 8 CFR 247a.12(c), are 

required to apply for employment 

authorization and may work only if 

USCIS approves their application. 

Therefore, they are authorized to work 

for any employer, as well as to engage 

in self-employment, upon approval, in 

the discretion of USCIS, of Form I–765, 

Application for Employment 

Authorization, so long as their EAD 

remains valid.5

2. The Application Process for 

Obtaining Employment Authorization 

and EADs: 8 CFR 274a.13(a) 

For certain eligibility categories listed 

in 8 CFR 274a.12(a) (the first class) and 

all eligibility categories listed in 8 CFR 

274a.12(c) (the third class), as well as 

additional categories specified in form 

instructions, an Application for 

Employment Authorization (Form I– 

765) must be properly filed with USCIS 

(with fee or fee waiver as applicable) to 

receive employment authorization and/ 

or the Form I–766 EAD.6 If granted, 

such employment authorization and 

EADs allow noncitizens to work for any 

U.S. employer or engage in selfemployment, as applicable. Certain 

noncitizens may file Form I–765 

concurrently with a related benefit 

request if permitted by the form 

instructions or as announced by 

USCIS.7 In some instances, the 

underlying benefit request, if granted, 

would form the basis for eligibility for 

employment authorization. 

For eligibility categories listed in 8 

CFR 274a.12(a) and (c), USCIS has the 

discretion to establish a specific validity 

period for the EAD.8

3. Automatic Extensions of EADs for 

Renewal Applicants: 8 CFR 274a.13(d) 

a. Renewing Employment Authorization 

and/or EADs 

EADs are not valid indefinitely, but 

instead expire after a specified period of 

time.9 Noncitizens within eligibility 

categories listed in 8 CFR 274a.12(c) 

must obtain a renewal of employment 

authorization and their EAD before the 

expiration date stated on the current 

EAD, or the noncitizen will lose the 

eligibility to work in the United States 

unless the noncitizen has obtained an 

immigration status or belongs to a class 

of individuals with employment 

authorization incident to that status (or 

class) since obtaining a current EAD. 

The same holds true for some classes of 

noncitizens authorized to work incident 

to status whose EADs’ expiration dates 

coincide with the termination or 

expiration of their underlying 

immigration status. Other noncitizens 

authorized to work incident to status, 

such as asylees, refugees, and 

Temporary Protected Status (TPS) 

beneficiaries, may have immigration 

status that confers employment 

authorization that continues past the 

expiration date stated on their EADs. 

Nevertheless, such individuals may 

wish to renew their EAD in order to 

have valid evidence of their continuous 

employment authorization for various 

purposes, such as presenting evidence 

of employment authorization and 

identity to their employers for 

completion of the Employment 

Eligibility Verification (Form I–9), or to 

obtain benefits such as a driver’s license 

from a State motor vehicle agency.10

Failure to renew their EADs prior to the 

expiration date may result in job loss if 

such individuals do not have or cannot 

present alternate evidence of 

employment authorization, as 

employers who continue to employ 

individuals without employment 


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26616 Federal Register / Vol. 87, No. 86 / Wednesday, May 4, 2022 / Rules and Regulations 

11For an initial hire, the employee must present 

the employer with acceptable documents 

evidencing identity and employment authorization. 

The lists of acceptable documents can be found on 

the last page of the Form I–9. See https://

www.uscis.gov/sites/default/files/document/forms/ 

i-9.pdf (last updated Oct. 21, 2019). An employer 

that does not properly complete Form I–9, which 

includes reverifying continued employment 

authorization, or continues to employ an individual 

with knowledge that the individual is not 

authorized to work may be subject to civil money 

penalties. See https://www.uscis.gov/i-9-central/ 

handbook-for-employers-m-274/100-unlawfuldiscrimination-and-penalties-for-prohibitedpractices/108-penalties-for-prohibited-practices 

(last updated Apr. 27, 2020). 

12See https://www.uscis.gov/sites/default/files/ 

document/forms/i-765instr.pdf (08/25/20 edition). 

In reviewing the Form I–765, USCIS ensures that 

the fee was paid, a fee waiver was granted, or a fee 

exemption applies. 

13See, e.g., INA sec. 237(a)(1)(C), 8 U.S.C. 

1227(a)(1)(C). 

14See INA sec. 245(c), 8 U.S.C. 1255(c). 

15See INA sec. 274A, 8 U.S.C. 1324a. 

16See 8 CFR 274a.13(d) (2016). 

17See Final Rule, Retention of EB–1, EB–2, and 

EB–3 Immigrant Workers and Program 

Improvements Affecting High-Skilled 

Nonimmigrant Workers, 81 FR 82398 (Nov. 18, 

2016) (‘‘AC21 Final Rule’’). The final rule was 

issued after a proposed rule was published in the 

Federal Register. See Notice of Proposed 

Rulemaking, Retention of EB–1, EB–2, and EB–3 

Immigrant Workers and Program Improvements 

Affecting High-Skilled Nonimmigrant Workers, 80 

FR 81899 (Dec. 31, 2015) (‘‘AC21 NPRM’’). 

18See 81 FR at 82455–82463 (AC21 Final Rule). 

19See 80 FR at 81927 (‘‘DHS proposes to amend 

its regulations to help prevent gaps in employment 

authorization for certain employment-authorized 

individuals who are seeking to renew expiring 

EADs. . . . These provisions would significantly 

mitigate the risk of gaps in employment 

authorization and required documentation for 

eligible individuals, thereby benefitting them and 

their employers.’’). 

20See 80 FR at 81927 (‘‘DHS believes that this 

time period [of up to 180 days] is reasonable and 

provides more than ample time for USCIS to 

complete the adjudication process based on 

USCIS’s current 3-month average processing time 

for Applications for Employment Authorization.’’); 

id. at 81927 n.77 (‘‘Depending on any significant 

surges in filings, however, there may be periods in 

which USCIS takes longer than 2 weeks to issue 

Notices of Action (Forms I–797C).’’). 

21 8 CFR 274a.13(d)(1)(i). TPS beneficiaries must 

file during the designated period in the applicable 

Federal Register notice. In addition, the TPS and 

TPS-related documentation, including EADs, of 

certain TPS beneficiaries under the TPS 

designations for Haiti, El Salvador, Sudan, 

Nicaragua, Honduras, and Nepal are continued 

subject to current court orders and litigation 

compliance Federal Register notices. See 86 FR 

50725 (Sept. 10, 2021) (continuing TPS and TPSrelated documentation for eligible beneficiaries of 

the TPS designations for the noted six countries 

through December 31, 2022, and further noting that 

DHS will issue future such notices as necessary to 

comply with court orders in Ramos, et al. v. 

Nielsen, et al., No. 18–cv–01554 (N.D. Cal. Oct. 3, 

2018) (‘‘Ramos’’); Saget, et al. v. Trump, et al., No. 

18–cv–1599 (E.D.N.Y. Apr. 11, 2019) (‘‘Saget’’); and 

Bhattarai v. Nielsen, No. 19–cv–00731 (N.D. Cal. 

Mar. 12, 2019) (‘‘Bhattarai’’). DHS also will comply 

with any superseding court orders in these lawsuits. 

This TFR will be construed in harmony, to the 

extent possible, with the existing and any future 

court orders in this referenced litigation. 

22See 8 CFR 274a.13(d)(1)(ii) (exempting 

individuals approved for TPS with EADs issued 

pursuant to 8 CFR 274a.12(c)(19) from the 

requirement that the employment authorization 

category on the face of the expiring EAD be the 

same as on the request for renewal (Form I–765)). 

See also DHS, USCIS, Employment Authorization 

for Certain H–4, E, and L Nonimmigrant Dependent 

Spouses, PA–2021–25 (Nov. 12, 2021), https://

www.uscis.gov/sites/default/files/document/policymanual-updates/20211112-Employment

Authorization.pdf (explaining that certain H–4, E, 

or L dependent spouses may submit a document 

combination including an unexpired Form I–94 

indicating H–4, E, or L–2 nonimmigrant status 

alongside Form I–797C). 

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

24See DHS, USCIS, Automatic Employment 

Authorization Document (EAD) Extension, https:// 

www.uscis.gov/eadautoextend (last updated Nov. 

12, 2021). 

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

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

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

authorization may be subject to civil 

money penalties.11

Those seeking to renew previously 

granted employment authorization and/ 

or EADs must file the renewal request 

on Form I–765 with USCIS in 

accordance with the form instructions.12

Module A. b. Minimizing the Risk of 

Gaps in Employment Authorization 

and/or EAD Validity Through 

Automatic Extensions 

If an eligible noncitizen is not able to 

renew their employment authorization 

and/or EAD before it expires, the 

noncitizen and the employer may 

experience adverse consequences. For 

the noncitizen, the lack of renewal 

could cause job loss, gaps in 

employment authorization, and loss of 

income to the noncitizen and their 

family member(s). For the noncitizen’s 

employer, the disruption may cause 

instability with business continuity or 

other financial harm. Beyond the 

financial and economic impact that gaps 

in employment create for the employer 

and the noncitizen, if the noncitizen 

engages in unauthorized employment, 

such activity may render a noncitizen 

removable,13 render a noncitizen 

ineligible for future benefits such as 

adjustment of status,14 and/or may 

subject the employer to civil and 

criminal penalties.15

Before 2016, USCIS regulations 

indicated that USCIS would ‘‘adjudicate 

an application [for an EAD] within 90 

days’’ from the date USCIS received the 

application.16 If USCIS did not 

adjudicate the application within that 

timeframe, the applicant was eligible to 

be issued an interim document 

evidencing employment authorization 

with a validity period not to exceed 240 

days. On November 18, 2016, as part of 

DHS’s efforts to implement the 

flexibilities provided to noncitizens and 

employers by the American 

Competitiveness in the Twenty-first 

Century Act of 2000 (AC21), as 

amended, and the American 

Competitiveness and Workforce 

Improvement Act of 1998, DHS 

published a final regulation 17 removing 

the provision and replacing it with the 

current 8 CFR 274a.13(d). 

Under the current provision, certain 

employment eligibility categories 

receive an automatic extension of 

employment authorization and EAD for 

up to 180 days if certain conditions 

(outlined below) are met.18 DHS created 

the provision to prevent gaps in 

employment authorization and related 

consequences for certain renewal 

applicants,19 and in light of processing 

times and possible filing surges.20 To 

significantly mitigate the risks of and 

consequences related to gaps in 

employment authorization for renewal 

applicants, DHS changed its regulations 

at 8 CFR 274a.13(d) to provide certain 

categories of renewal applicants with an 

automatic extension of their EADs and, 

if applicable, related employment 

authorization, for up to 180 days from 

the expiration date on the EAD if: 

• The renewal applicants timely file 

an application to renew their 

employment authorization and/or EAD 

on Form I–765 before the EAD 

expires; 21

• The renewal Form I–765 is based on 

the same employment authorization 

category on the front of the expiring 

EAD or is for an individual approved for 

TPS whose EAD was issued pursuant to 

8 CFR 274a.12(c)(19); 22 and 

• The noncitizen’s eligibility to apply 

for employment authorization continues 

notwithstanding the expiration of the 

EAD and is based on an employment 

authorization category that does not 

require the adjudication of an 

underlying application or petition 

before the adjudication of the renewal 

application, as announced on the USCIS 

website.23

The following classes of noncitizens 

filing to renew an EAD may be eligible 

to receive an automatic extension of 

their employment authorization and/or 

EAD for up to 180 days, which USCIS 

discusses in detail at https://

www.uscis.gov/eadautoextend: 24

• Noncitizens admitted as refugees 

(A03).25

• Noncitizens granted asylum 

(A05).26

• Noncitizens admitted as parents or 

dependent children of noncitizens 

granted permanent residence under 

section 101(a)(27)(I) of the INA, 8 U.S.C. 

1101(a)(27)(I) (A07).27

• Noncitizens admitted to the United 

States as citizens of the Federated States 


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Federal Register / Vol. 87, No. 86 / Wednesday, May 4, 2022 / Rules and Regulations 26617 

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

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

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

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

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

1184(c)(2)(E). 

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

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

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

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

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

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

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

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

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

42See 8 CFR 274a.13(d)(3). 

43See 8 CFR 274a.13(d)(4). 

44See DHS, USCIS, Completing Section 3, 

Reverification and Rehires, https://www.uscis.gov/i9-central/complete-correct-form-i-9/completingsection-3-reverification-and-rehires (last updated 

July 10, 2020). 

45See USCIS’ web page at https://www.uscis.gov/ 

green-card/green-card-processes-and-procedures/ 

employment-authorization-document (last updated 

Feb. 11, 2022); see also 81 FR at 82456 (AC21 Final 

Rule). 

46See 8 CFR 274a.13(d)(3). 

47See 8 CFR 274a.2(b)(vii) (reverification 

provision). 

of Micronesia or the Marshall Islands 

pursuant to agreements between the 

United States and the former trust 

territories (A08).28

• Noncitizens granted withholding of 

deportation or removal (A10).29

• Noncitizens granted TPS, regardless 

of the employment authorization 

category on their current EADs (A12 or 

C19).30

• Noncitizen spouses of E–1/2/3 

nonimmigrants (Treaty Trader/Investor/ 

Australian Specialty Worker) (A17).31

• Noncitizen spouses of L–1 

nonimmigrants (Intracompany 

Transferees) (A18).32

• Noncitizens who have properly 

filed applications for TPS and who have 

been deemed prima facie eligible for 

TPS under 8 CFR 244.10(a) and have 

received an EAD as a ‘‘temporary 

treatment benefit’’ under 8 CFR 

244.10(e) and 274a.12(c)(19) (C19).33

• Noncitizens who have properly 

filed applications for asylum and 

withholding of deportation or removal 

(C08).34

• Noncitizens who have filed 

applications for adjustment of status to 

lawful permanent resident under 

section 245 of the INA, 8 U.S.C. 1255 

(C09).35

• Noncitizens who have filed 

applications for suspension of 

deportation under section 244 of the 

INA (as it existed prior to April 1, 1997), 

cancellation of removal pursuant to 

section 240A of the INA, or special rule 

cancellation of removal under section 

309(f)(1) of the Illegal Immigration 

Reform and Immigrant Responsibility 

Act of 1996 (C10).36

• Noncitizens who have filed 

applications for creation of record of 

lawful admission for permanent 

residence (C16).37

• Noncitizens who have properly 

filed legalization applications pursuant 

to section 210 of the INA, 8 U.S.C. 1160 

(C20).38

• Noncitizens who have properly 

filed legalization applications pursuant 

to section 245A of the INA, 8 U.S.C. 

1255a (C22).39

• Noncitizens who have filed 

applications for adjustment of status 

pursuant to section 1104 of the Legal 

Immigration Family Equity Act (C24).40

• Noncitizen spouses (H–4) of H–1B 

nonimmigrants with an unexpired Form 

I–94 showing H–4 nonimmigrant status 

(C26).41

• Noncitizens who are the principal 

beneficiaries or qualified children of 

approved VAWA self-petitioners, under 

the employment authorization category 

‘‘(c)(31)’’ in the form instructions to 

Form I–765 (C31). 

Currently, the extension automatically 

terminates the earlier of up to 180 days 

after the expiration date of the EAD, or 

upon issuance of notification of a 

decision denying the renewal request.42

An EAD that has expired on its face is 

considered unexpired when combined 

with a Form I–797C indicating a timely 

filing of the application to renew the 

EAD.43 Therefore, when the expiration 

date on the front of the EAD is reached, 

a noncitizen who is continuing in their 

employment with the same employer 

and relying on their extended EAD to 

show their employment authorization 

must present to the employer the Form 

I–797C to show continued employment 

authorization, and the employer must 

update the previously completed Form 

I–9 to reflect the extended expiration 

date based on the automatic extension 

while the renewal is pending. For new 

employment, the automatic extension 

date is recorded on the Form I–9 by the 

employee (if applicable) and employer 

in the first instance. In either case, the 

reverification of employment 

authorization or the EAD occurs when 

the automatic extension period 

terminates.44

USCIS policy generally permits the 

filing of a Form I–765 renewal 

application up to 180 days before the 

current EAD expires.45 If the renewal 

application is granted, the employment 

authorization and/or EAD generally will 

be valid as of the date of approval of the 

application. If the application is denied, 

the employment authorization and/or 

EAD generally is terminated on the day 

of the denial.46 If the renewal 

application was timely and properly 

filed but remains pending beyond the 

180-day automatic extension period and 

the employee cannot provide other 

evidence of current employment 

authorization, the employee must stop 

working on the beginning of the 181st 

day after the expiration of the EAD, and 

the employer must remove the 

employee from the payroll.47 As a 

result, both the employee and the 

employer will experience the negative 

consequences of gaps in employment 

authorization and/or EAD validity. 

Since its promulgation in 2016, the 

automatic extension provision at 8 CFR 

274a.13(d) has helped to minimize the 

risk of these negative consequences for 

applicants who are otherwise eligible 

for the automatic extension and their 

employers. 

Recently, however, it has become 

apparent that the 180-day automatic 

extension is not enough for a growing 

number of renewal applicants. 

Thousands of renewal applications 

remain pending beyond the 180-day 

automatic extension period resulting in 

applicants losing employment 

authorization and/or EAD validity. The 

grave situation that applicants and, in 

turn, their employers are facing 

generally is not the result of the 

applicant’s actions, but instead the 

result of several converging factors 

affecting USCIS operations that have 

been compounded by the COVID–19 

public health emergency. These factors 

resulted in a significant increase in 

USCIS processing times for several 

categories of Form I–765 renewal 

applications, as described in detail 

below. DHS has determined that the 

180-day automatic extension provision 

is currently insufficient to protect 

applicants as was originally intended. 

III. Purpose of This Temporary Final 

Rule 

A. Overview of Issues Negatively 

Impacting Form I–765 Processing Times 

Prior to 2019, USCIS generally kept 

pace with the steady flow of Form I–765 

filings and met its 3-month internal 

processing goal. However, in the years 

leading up to 2019, USCIS began 

accruing backlogs in adjudications 

across various other form types owing to 

shifting priorities, increased form 

lengths, expanded interview 

requirements, increased Request for 

Evidence issuance, and insufficient 

staffing levels due to a hiring freeze 

within the Field Operations Directorate 

beginning December 2019 and one in 

the Service Center Operations 


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48A U.S. Government Accountability Office 

report observed that despite receipts remaining 

steady (between 8 million and 10 million) from 

fiscal year (FY) 2015 through FY 2019, USCIS’ 

processing times increased through FY 2020, and 

the overall pending caseload grew an estimated 85 

percent, with USCIS having received more than 4 

million applications and petitions in the first two 

quarters of FY 2020, owing to the factors listed 

above. Factors that affected Form I–765, 

specifically, will be discussed in further detail 

below. See GAO–21–529, U.S. Citizenship and 

Immigration Services: Actions Needed to Address 

Pending Caseload (Aug. 2021), pp. 9, 12, 14, and 

20, https://www.gao.gov/assets/gao-21-529.pdf. The 

hiring freezes that began in the Field Operations 

and Service Center Operations Directorates were 

eventually subsumed by an agency-wide hiring 

freeze beginning May 1, 2020, which is discussed 

in further detail below. USCIS lifted the agencywide hiring freeze in March 2021. 

49USCIS had made some progress in addressing 

these backlogs before the COVID–19 pandemic. In 

FY 2019, USCIS observed a backlog growth rate of 

less than 1 percent—the smallest growth in 

backlogs since 2012. This was due to a 4-percent 

decrease in receipts, increases in completions 

(naturalizations, adjustments of status, and 

nonimmigrant and immigrant worker petitions), 

and additional staffing. However, the COVID–19 

pandemic reversed any gains USCIS had made. 

50Other contributing factors include competing 

priorities, such as litigation obligations and 

administration priorities, that shifted resources 

away from Form I–765 adjudications or caused the 

agency to focus resources on certain categories or 

subcategories of Form I–765; and policy changes 

(such as expanding biometrics requirements to 

certain applicants filing Form I–539, Application to 

Extend/Change Nonimmigrant Status), which 

delayed USCIS’ ability to approve any Form I–765 

relying on an underlying Form I–539 decision. See 

GAO–21–529, U.S. Citizenship and Immigration 

Services: Actions Needed to Address Pending 

Caseload (Aug. 2021), pp. 15–20. However, these 

factors, while relevant, have been mitigated through 

recent policy changes and, therefore, are no longer 

a significant cause of gaps in employment 

authorization for applicants. For example, on May 

17, 2021, USCIS temporarily suspended the 

biometrics requirement for certain Form I–539 

applicants to address the processing delays 

exacerbated by limited Application Support Center 

(ASC) capacity due to COVID–19. See USCIS News 

Alert, USCIS Temporarily Suspends Biometrics 

Requirement for Certain Form I–539 Applicants, 

https://www.uscis.gov/news/alerts/uscistemporarily-suspends-biometrics-requirement-forcertain-form-i-539-applicants (last updated May 13, 

2021). 

51The median processing time represents the 

time it took to complete 50 percent of the cases 

completed in a given time period. 

52The time it took USCIS to complete 93 percent 

of these cases was 11.4 months. For more 

information on how USCIS calculates its processing 

times, see USCIS’ web page at https://

egov.uscis.gov/processing-times/more-info (last 

visited Feb. 9, 2022). 

53Applicants filing a Form I–765 based on a 

pending LRIF-based adjustment application also 

use ‘‘(c)(9)’’ as their eligibility category on Form I– 

765. 

54 In December 2021, these three filing categories 

made up nearly 95 percent of the renewal EAD 

receipts filed in categories eligible for the automatic 

extension of employment authorization. Broken 

down further among these three categories: The C08 

category comprised approximately 58 percent of the 

renewal EAD receipts filed in categories eligible for 

the automatic extension, while the C09 category 

comprised approximately 19 percent and the C10 

comprised approximately 18 percent. 

55 In some cases, USCIS’ data is based on its fiscal 

year, beginning on October 1 and ending on 

September 30 of the reporting period. 

Directorate beginning February 2020.48

Those backlogs in other program areas 

strained USCIS resources, which, when 

coupled with USCIS’ worsening fiscal 

situation beginning in late 2019 and 

continuing into 2020 and part of 2021, 

hindered USCIS’ ability to allocate 

resources to respond to the increase in 

Form I–765 filings in a manner that 

would allow USCIS to continue to meet 

its 3-month internal processing goal as 

it historically had. Additionally, strain 

on USCIS’ financial resources, which 

was due in part to USCIS’ inability to 

update its fee structure since 2016, 

negatively affected staffing levels and 

hampered the ability to quickly respond 

to shifting workload demands. The 

COVID–19 pandemic exacerbated 

USCIS’ precarious fiscal situation, 

deepening its fiscal emergency. The 

pandemic also led to new and 

significant operational disruptions, 

reversing any gains the agency had 

made on existing backlogs; 49 these 

pandemic-related disruptions impacted 

adjudications of immigration benefit 

requests as well as the pipeline of work 

for which all required pre-adjudicative 

processing was completed (making 

forms ‘‘adjudication-ready’’), including 

for Form I–765 adjudications.50 In 2021, 

before USCIS could recover from these 

fiscal and operational impacts, USCIS 

experienced a sudden and dramatic 

increase in Form I–765 filings due to: 

Increased filings in the C09 (pending 

adjustment) category generally caused 

by changes in employment-based visa 

availability, new Temporary Protective 

Status (TPS) designations and 

redesignations, and the cyclical nature 

of the C08 (pending asylum) and C33 

(DACA) categories. USCIS has 

experienced significant Form I–765 

backlogs since then. 

Presently, Form I–765 processing 

times vary, with many categories’ 

processing times extending far beyond 

USCIS’ 3-month processing goal for the 

form type. By December 2021, the 

median 51 processing time for all initial 

and renewal Form I–765 applications 

was 6.5 months, and the median 

processing time for all Form I–765 

renewal applications was 5.4 months. 

For those renewal applicants within 

employment authorization categories 

eligible for the up to 180-day automatic 

extension of employment authorization 

provided by 8 CFR 274a.13(d), as of 

December 2021, USCIS’ median 

processing time was 8.0 months.52

Given these processing times, DHS 

recognizes that approximately 87,000 

renewal applicants eligible for an 

automatic extension under 8 CFR 

274a.13(d)(1) are, or soon will be, past 

the 180-day automatic extension period 

of their employment authorization and/ 

or EAD validity. 

The vast majority of applicants filing 

renewal Form I–765 applications and 

who are eligible for the automatic 

extension of EADs under 8 CFR 

274a.13(d) fall under three filing 

categories: (1) Noncitizens who have 

properly filed applications for asylum 

and withholding of deportation or 

removal (C08); (2) noncitizens who have 

properly filed applications for 

adjustment of status to lawful 

permanent resident under section 245 of 

the INA, 8 U.S.C. 1255 (C09); 53 and (3) 

noncitizens who have properly filed 

applications for suspension of 

deportation under section 244 of the 

INA (as it existed prior to April 1, 1997), 

cancellation of removal pursuant to 

section 240A of the INA, or special rule 

cancellation of removal under section 

309(f)(1) of the Illegal Immigration 

Reform and Immigrant Responsibility 

Act of 1996 (C10).54 As of December 

2021, the processing time range 

(between median and 93rd percentile) 

for Form I–765 renewal applications 

filed based on the C08 category was 10.1 

to 11.5 months; for the C09 category, 7.7 

to 11.6 months; and for the C10 

category, 6.1 to 8.6 months. By 

comparison, this processing time range 

as of December 2020, for the C08 

category, was 5.0 to 6.9 months; for the 

C09 category, 2.5 to 5.6 months; and for 

the C10 category, 3.2 to 4.2 months. 

TABLE 1—RECENT DRAMATIC GROWTH IN 50TH AND 93RD PERCENTILE PROCESSING TIMES FOR FORM I–765 RENEWAL

APPLICATIONS FILED BY TOP THREE FILING CATEGORIES

Fiscal year 55 Pending asylum applicants 

(C08) 

Adjustment of status applicants 

(C09) 

Suspension/cancellation applicants 

(C10) 

2017 ................ 6.5 to 7.1 months .................................... 4.6 to 6.5 months .................................... 6.3 to 8.4 months. 

2018 ................ 2.8 to 4.4 months .................................... 4.7 to 8.1 months .................................... 7.0 to 9.5 months. 


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56Other renewal categories that fall within 8 CFR 

274a.13(d) experiencing processing times in 

December 2021 that exceed the 3-month goal 

include EAD applicants filing under 8 CFR 

274a.12(a)(5) for individuals granted asylum (6.1 to 

10.2 months), (a)(10) for individuals granted 

withholding of deportation or removal (7.2 to 10.3 

months), and (c)(31) for VAWA self-petitioners (6.3 

to 13.1 months). 

57Reasons for delays in case completions for 

these approximately 3,300 applicants included 

competing priorities, Requests for Evidence, 

staffing, and the COVID–19 pandemic. 

58The 66,000 and approximately 3,300 figures 

reflect all EAD categories eligible for automatic 

extension of employment eligibility and/or EAD 

validity. Therefore, some applicants within this 

population, namely applicants filing under 8 CFR 

274a.12(a) (employment authorized incident to 

status or circumstance), do not necessarily lose 

their employment authorization after the 180-day 

automatic extension period is exhausted. Because 

their employment authorization is incident to their 

immigration status or circumstance, these renewal 

EAD applicants’ primary consequence is that their 

EADs become invalid. Considering that the vast 

majority (approximately 95 percent as of December 

2021) of renewal EAD applicants are those filing 

under 8 CFR 274a.12(c)(8), (9), and (10), however, 

the 66,000 and 3,300 figures are presumed to 

represent largely applicants whose primary 

consequence is a loss of employment authorization 

itself. Even so, DHS recognizes harm may be 

experienced by applicants filing under 8 CFR 

274a.12(a) categories as well. While these 

applicants may have available alternative 

evidentiary options other than an EAD that they can 

use to show proof of employment authorization to 

their employers for Form I–9 completion or for 

purposes of receiving State or local public benefits 

(e.g., driver’s licenses), DHS recognizes that having 

no valid EAD may nevertheless cause harm, 

including job loss. 

59See Employment Authorization Applications 

Rule and the Asylum Application, Interview, and 

Employment Authorization for Applicants Rule 

(‘‘Broader Asylum EAD Rule’’), 85 FR 38532 (June 

26, 2020), and preliminary injunction in Casa de 

Maryland Inc. et al. v. Chad Wolf et al., 8:20–cv– 

02118–PX (D. Md. Sept. 11, 2020). 

60See Asylumworks, et al. v. Alejandro N. 

Mayorkas, et al., No 20–CV–3815 BAH, 2022 WL 

355213 (D.D.C. Feb 7, 2022). 

61See INA 208(d)(2), 8 U.S.C. 1158(d)(2). 

62See Transactional Records Access 

Clearinghouse, Asylum Grant Rates Climb Under 

Continued 

TABLE 1—RECENT DRAMATIC GROWTH IN 50TH AND 93RD PERCENTILE PROCESSING TIMES FOR FORM I–765 RENEWAL

APPLICATIONS FILED BY TOP THREE FILING CATEGORIES—Continued 

Fiscal year 55 Pending asylum applicants 

(C08) 

Adjustment of status applicants 

(C09) 

Suspension/cancellation applicants 

(C10) 

2019 ................ 4.1 to 5.2 months .................................... 5.2 to 7.8 months .................................... 2.7 to 4.6 months. 

2020 ................ 5.0 to 6.9 months .................................... 2.5 to 5.6 months .................................... 3.2 to 4.2 months. 

2021 ................ 10.1 to 11.5 months ................................ 7.7 to 11.6 months .................................. 6.1 to 8.6 months. 

With current processing times far 

exceeding USCIS’ normal 3-month goal, 

the 180 days of additional employment 

authorization/EAD validity provided for 

these renewal (and some additional) 

categories by 8 CFR 274a.13(d) is 

insufficient.56 After the additional 180 

days is exhausted, many applicants are 

still waiting for their Form I–765 

renewal applications to be approved. 

Such applicants therefore lose 

employment authorization and/or their 

EADs become invalid while the decision 

on their renewal applications remains 

outstanding. By December 31, 2021, 

approximately 66,000 renewal EAD 

applicants were in this situation. By 

comparison, in December 2020, 

approximately 3,300 applicants 57 had 

Form I–765 renewal applications 

pending beyond the 180-day automatic 

extension.58

Without immediate intervention, DHS 

estimates that the situation will only 

worsen over time, as each month, 

thousands of additional EAD renewal 

applicants are at risk of losing their 

employment authorization and/or EAD 

validity despite the 180-day automatic 

extension period currently provided by 

regulation. Beginning in calendar year 

(CY) 2022, DHS estimates that 

approximately 14,500 or more renewal 

applicants, the majority of whom are in 

the C08 pending asylum applicant 

category, lost or could lose their 

employment authorization and/or EAD 

validity each month unless immediate 

action is taken to remedy the situation. 

The situation for asylum applicants is 

especially dire because of the significant 

time that asylum applicants must wait 

to become employment-authorized in 

the first place. Under regulations that 

were in effect from August 2020 through 

February 2022, most members of this 

vulnerable population were not 

permitted to apply for employment 

authorization until 365 calendar days 

had elapsed since the filing of their 

asylum application.59 Although this 

regulation was vacated 60 in February of 

2022, by statute, asylum applicants still 

cannot be approved for initial EADs 

until their asylum applications have 

been pending for 180 days.61 This initial 

wait time exacerbates the oftenprecarious economic situations asylum 

seekers may be in as a result of fleeing 

persecution in their home countries. 

Many lacked substantial resources to 

support themselves before they fled, or 

spent much of what they had to escape 

their country and travel to the United 

States. Those with resources may have 

been forced to leave what they had 

behind because they lacked the time to 

sell property or otherwise gather what 

they owned. When whole families are 

threatened, the primary earner may be 

the first to travel to the United States to 

establish a new home before bringing 

the rest of the family. The cost to travel 

to the United States is high, as is the 

relative cost of living. In these 

circumstances, if the asylum seeker is 

unable to seek employment for extended 

periods of time, it can not only 

negatively impact that individual, but 

the whole family as well. 

For those who have already found 

jobs to support their needs, the potential 

for their initial EADs to expire prior to 

the approval and issuance of a renewed 

EAD may force them back into 

instability caused by a gap in the ability 

to legally work. Some employers, 

notwithstanding possible violation of 

INA section 274B governing unfair 

immigration-related employment 

practices (8 U.S.C. 1324b), or other laws, 

may also be hesitant to accept EADs as 

proof of employment authorization or 

hire employees who present EADs in 

the first place if it appears maintaining 

their employment will be difficult due 

to potential lapses in employment 

authorization. Continuous employment 

authorization during the pendency of an 

asylum application is vital for asylum 

seekers in the United States in order to 

access housing, food, and other 

necessities. In addition, asylum seekers 

may need income or employment to 

access medical care, mental health 

services, and other resources, as well as 

to access legal counsel in order to 

pursue their claims before USCIS or the 

Executive Office for Immigration 

Review (EOIR). Access to mental health 

services is particularly crucial for 

asylum seekers due to the prevalence of 

trauma-induced mental health concerns, 

including depression and post-traumatic 

stress disorder (PTSD). The physical 

harm experienced by many asylum 

seekers necessitates continuous medical 

care for extended periods of time. 

Finally, the purpose for which asylum 

seekers came to the U.S. is to seek longterm protection by receiving asylum. 

Legal assistance may be key for an 

asylum seeker to successfully claim 

asylum,62 but it is also often expensive. 


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Biden (2021), https://trac.syr.edu/immigration/ 

reports/667/ (last updated Nov. 10, 2021) (‘‘Asylum 

seekers who are represented by an attorney have 

greatly increased odds of winning asylum or other 

forms of relief from deportation.’’). 

63USCIS’ Field Operations Directorate (FOD) 

initiated a hiring freeze in December 2019; USCIS’ 

Service Center Operations Directorate (SCOPS) did 

the same starting in February 2020. While both FOD 

and SCOPS adjudicate Forms I–765, SCOPS 

adjudicates the vast majority, including all those 

filed by pending asylum applicants (C08 category). 

64See 81 FR 73292 (Oct. 24, 2016). 

65See 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. 

66On 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. 

67See 81 FR 73292 (Oct. 24, 2016). 

68See 85 FR 46788 (Aug. 3, 2020). Additional 

categories exempt from the filing fee include 8 CFR 

274a.12(a)(8) and (10) and (c)(1), (4), (7), and (16). 

The category at 8 CFR 274a.12(c)(9) is one of the 

top categories experiencing unusually long 

processing times and, therefore, is one of the main 

focuses of this rule. 

69See 85 FR 46788 (Oct. 2, 2020). As noted above, 

DHS is preliminarily enjoined from implementing 

or enforcing any part of this rule. 

70From FY 2015 through FY 2020, USCIS 

received a range of approximately 2.0 to 2.3 million 

Form I–765 filings (seeking both initial EADs and 

renewal of initial EADs) each fiscal year. In FY 

2021, this figure increased to approximately 2.6 

million. This increase in Form I–765 filings, which 

was largely observed in the volume of Form I–765 

renewal applications sought in categories eligible 

for automatic extension of EADs, contributed to the 

formation of backlogs, as discussed further in 

Section II.C below. 

71See HHS, Determination that a Public Health 

Emergency Exists (Jan. 31, 2020), https://

www.phe.gov/emergency/news/healthactions/phe/ 

Pages/2019-nCoV.aspx. 

72Notice 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). 

73HHS, Renewal of Determination that a Public 

Health Emergency Exists (Oct. 15, 2021), https://

www.phe.gov/emergency/news/healthactions/phe/ 

Pages/COVDI-15Oct21.aspx). 

74See 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. 

75See 2020 USCIS Statistical Annual Report, p. 

4: ‘‘[During the onset of the COVID–19 pandemic], 

incoming receipts were 32 percent lower compared 

to the same time period in FY 2019. By the end of 

FY 2020, USCIS received about 5% fewer receipts 

than in FY 2019. Although receipts decreased in 

some of the most frequently submitted form types, 

others such as the N–400 (Application for 

Naturalization) and I–129 (Petition for 

Nonimmigrant Worker) increased slightly from FY 

2019.’’ In addition to the lowest number of receipts 

in the past 5 years, USCIS also completed the 

lowest number of benefit requests in the past 5 

years. The worst rates of completion were observed 

during the beginning of the pandemic when USCIS 

field offices and ASCs were closed to the public. 

While USCIS attempted to recover by shifting 

adjudications to form types not requiring in-person 

appearances, USCIS still completed fewer benefit 

requests than it received in FY 2020. See 2020 

USCIS Statistical Annual Report, p. 4. 

76 During this time period, USCIS had an 

estimated $1.2-billion budget shortfall. 

77A border case included credible and reasonable 

fear interviews, as well as Migrant Protection 

Protocols (MPP) non-refoulement interviews. 

B. Effect of Operational Challenges on 

Form I–765 Adjudications 

1. Precarious Fiscal Status in 2020 and 

Part of 2021 

USCIS is a fee-based agency that relies 

on predictable fee revenue and its 

carryover from the previous year. USCIS 

began experiencing fiscal troubles as 

early as December 2019, when at least 

one USCIS directorate initiated a hiring 

freeze.63 These fiscal troubles were due 

in part to the fact that USCIS has not 

been able to update its fee structure 

since the 2016 Fee Rule 64 (including 

fees for Form I–765), which does not 

fully cover the costs of administering 

current and projected volumes of 

immigration benefit requests. 

USCIS promulgated a new Fee Rule in 

August 2020 to address this fee/cost 

disparity.65 In September 2020, 

however, the 2020 Fee Rule was 

enjoined before it took effect and 

remains under a preliminary 

injunction.66 As such, the current fee for 

Form I–765 remains at $410, the fee set 

by the earlier 2016 Fee Rule.67 The 2016 

Fee Rule also exempts applicants from 

paying a fee if filing a Form I–765 to 

request renewal or replacement under 8 

CFR 274a.12(c)(9) (pending adjustment 

of status application), as well as some 

additional categories.68

The 2020 Fee Rule would have made 

various changes to USCIS filing fees to 

help cover the increased cost of 

adjudicating benefit requests, including 

a 34 percent increase for the Form I–765 

filing fee to $550, and removing fee 

exemptions for Form I–765 renewals or 

replacements for applicants filing under 

8 CFR 274a.12(c)(9), among other 

categories.69 USCIS continues to rely on 

the fee schedule established in the 2016 

Fee Rule, which does not fully account 

for current costs associated with 

adjudicating benefit requests. This 

unsustainable fiscal situation has, 

among other things, resulted in the 

inability to fund sufficient new officer 

positions to handle the heavy 

adjudication workload,70 meaning that 

USCIS was already in a precarious 

financial position with regard to staffing 

when the COVID–19 pandemic began. 

2. Public Health Emergency 

On January 31, 2020, the Secretary of 

Health and Human Services (HHS) 

declared a public health emergency 

under section 319 of the Public Health 

Service Act (42 U.S.C. 247d), in 

response to COVID–19, which is caused 

by the SARS–CoV–2 virus.71 On 

February 24, 2021, the President issued 

a continuation of the national 

emergency concerning the COVID–19 

pandemic.72 Effective October 15, 2021, 

HHS renewed the determination that ‘‘a 

public health emergency exists and has 

existed since January 27, 2020 

nationwide.’’ 73 On January 14, 2022, 

and as a result of the continued 

consequences of the COVID–19 

pandemic, HHS renewed yet again the 

determination that a public health 

emergency exists.74

As noted above, USCIS was already in 

a precarious financial situation in 2019. 

This was severely exacerbated by a 

significant drop in receipts across many 

of the most common benefit types at the 

beginning of the COVID–19 pandemic in 

spring 2020.75 The significant drop in 

revenue USCIS experienced early in the 

pandemic led the agency to plan for a 

sweeping furlough of approximately 70 

percent of its workforce to avoid 

financial collapse, including 

furloughing immigration services 

officers who adjudicate the Form I– 

765.76 To avoid the drastic furlough 

measures, USCIS employed every 

available means to preserve sufficient 

funds to meet payroll and carryover 

obligations. These measures included 

drastic cuts for supplies, facilities, 

overtime, and contractor support 

services, as well as an agency-wide 

hiring freeze lasting from May 1, 2020, 

through March 31, 2021. The loss of 

overtime funds hindered USCIS’ ability 

to address and mitigate backlogs 

through use of existing staff, which has 

been a strategy used successfully in the 

past to ensure processing times remain 

within goals. For example, in FY 2019, 

USCIS used $5.52 million of overtime 

funds for assigned staff to conduct 

border case 77 processing after working 

business hours and on the weekends, 

instead of assigning more staff to those 

caseloads during regular work hours, 

which would have pulled them away 

from affirmative asylum processing. 

Through the use of overtime, USCIS was 

able to continue to maintain its assigned 

staffing levels to affirmative asylum 

processing, but this option was not 

available in 2020, due to USCIS’ 

worsening fiscal situation beginning in 

late 2019 and continuing into 2020 and 

part of 2021. USCIS took action to avert 

a fiscal crisis, including limiting 


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78See 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-policystatement-on-uscis-fiscal-outlook. 

79Form I–765 workload includes requests for 

initial, renewal, and replacement employment 

authorization and/or EADs. 

80A detail is a temporary assignment of an 

employee to a different position for a specified 

period, with the employee returning to his or her 

regular duties at the end of the detail. 

spending to salaries and mission-critical 

activities; making drastic cuts to 

spending on supplies, facilities, and 

contractor support services; and 

eliminating overtime. The loss of 

contractor support services also 

hindered USCIS’ ability to intake filings 

efficiently and prepare cases for 

adjudication by officers. The agencywide hiring freeze expanded upon 

individual USCIS components’ hiring 

freezes already in place. 

These fiscal issues had a direct impact 

on staffing, and insufficient staffing 

levels directly impacted the processing 

times for Form I–765. In addition to a 

direct shortage of staff due to hiring 

freezes, USCIS experienced a noticeable 

increase in attrition following 

announcement of a potential furlough 

that could have impacted nearly 70 

percent of employees.78 Although DHS 

cannot quantify employees’ reasons for 

leaving, it is likely that the threatened 

furlough and uncertain fiscal status of 

the agency played a role. The hiring 

freeze also meant that the higher-thannormal number of vacancies could not 

be filled. Additionally, a number of 

initiatives have taken staff away from 

their normal duties such as important 

temporary assignments to the southern 

border, efforts relating to 

unaccompanied children, and 

processing petitions and applications by 

or on behalf of Afghan evacuees. All 

these factors contributed to a decrease 

in Form I–765 completions. For 

example, in FY 2019, the Service Center 

Operations Directorate (SCOPS) 

allocated 343,399 officer hours to its 

Form I–765 workload 79 and completed 

1,443,235 adjudications (mostly Form I– 

765 applications filed under 8 CFR 

274a.12(c)(8), followed by (c)(33) 

(granted DACA) and (c)(3)(B) (student 

post-completion optional practical 

training (OPT)). By comparison, in FY 

2020, SCOPS allocated 327,947 (or 

approximately 4.5 percent fewer) officer 

hours to the same workload and 

subsequently was only able to complete 

1,379,745 (or approximately 4.4 percent 

fewer) adjudications. These reductions 

were partly attributable to the overall 

decrease in staff, as well as competing 

priorities which factor into how existing 

resources are allocated. At the start of 

FY 2020, SCOPS had 5,102 employees 

on board. This diminished to 4,886 at 

the start of FY 2021 and 4,731 at the 

start of FY 2022 as the effects of attrition 

and the hiring freeze continued. This 

overall decrease of approximately 7.3 

percent does not include the additional 

loss of I–765 adjudication hours that 

stemmed from SCOPS supporting 

several programs requesting detailees.80

The number of detailees temporarily 

missing from the SCOPS workforce has 

not been static, but exceeded 200 

employees at points during FY 2021, 

leaving SCOPS staffed at levels less than 

89 percent of what existed going into FY 

2020. This data does not include 

contractor hours, which also were 

severely impacted by USCIS’ fiscal 

situation as USCIS was forced to reduce 

the number of contractors available to 

assist with case processing. 

Nonetheless, despite the reduction in 

officer hours, USCIS was able to 

maintain its 3-month processing goal up 

until December 2020, due to a 

corresponding reduction in Form I–765 

receipts. This changed in CY 2021, 

when USCIS experienced an 

extraordinary, 2-month surge of Form I– 

765 filings in spring 2021 and a 

sustained increase of filings thereafter, 

which is discussed further in Section C 

below. Despite the surge of Form I–765 

filings, SCOPS was able to allocate only 

314,924 officer hours (or approximately 

4.0 percent fewer than FY 2020 and 

approximately 8.3 percent fewer than 

FY 2019) to its Form I–765 workload 

and completed only 1,249,548 

adjudications (or approximately 9.4 

percent fewer than FY 2020 and 

approximately 13.4 percent fewer than 

FY 2019) due to insufficient staffing and 

competing priorities. USCIS was unable 

to surge additional resources to increase 

officer hours adjudicating Form I–765 

applications because of USCIS’ limited 

resources and the need to manage e 

other competing priorities in FY 2021. 

For example, USCIS surged officers to 

adjudicate employment-based Form I– 

485 applications to minimize the 

number of employment-based 

immigrant visas that would go unused 

at the end of FY 2021, after an 

extraordinary number of such unused 

family-preference visa numbers from FY 

2020 ‘‘fell across’’ to the employmentbased visa allocation for FY 2021, see 

generally INA 201(d)(2)(C), 8 U.S.C. 

1151(d)(2)(C), due primarily to 

Department of State consular closures 

caused by the COVID–19 pandemic. 


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81Such 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. 

82See, e.g., News Alert, USCIS Temporarily 

Closing Offices to the Public March 18–April 1 

(Mar. 17, 2020), https://www.uscis.gov/news/alerts/ 

uscis-temporarily-closing-offices-to-the-publicmarch-18-april-1. Some limited emergency inperson services were available upon request during 

this time. 

83USCIS has issued a series of temporary final 

rules that allow asylum offices to increase the use 

of telephonic interpreters, in order to minimize the 

impact of this safety measure on the agency’s ability 

to adjudicate asylum applications in a timely 

manner. See Asylum Interview Interpreter 

Requirement Modification Due to COVID–19, 85 FR 

59655 (Sept. 23, 2020) (TFR); Asylum Interview 

Interpreter Requirement Modification Due to 

COVID–19, 86 FR 15072 (Mar. 22, 2021); and 

Asylum Interview Interpreter Requirement 

Modification Due to COVID–19, 86 FR 51781 (Sept. 

17, 2021). As described in Section D.1. below, 

asylum application processing times impact Form 

I–765 renewal processing because the longer an 

asylum application is pending, the more times an 

applicant may need to file Form I–765 to renew 

employment authorization. If an individual’s 

asylum application is approved, they no longer 

need to file Form I–765 to obtain employment 

authorization because asylees are employment 

authorized incident to status. See 8 CFR 

274a.12(a)(5). While some asylees may choose to 

file Form I–765 using the (a)(5) category to receive 

EADs as evidence of their employment 

authorization, asylum applicants under the (c)(8) 

category make up approximately 10 times more 

Form I–765s than asylees under the (a)(5) category. 

See DHS, USCIS, Form I 765 Application for 

Employment Authorization All Receipts, Approvals, 

Denials Grouped by Eligibility Category and Filing 

Type (FY 2019–21), https://www.uscis.gov/sites/ 

default/files/document/data/I-765_Application_for_

Employment_FY03-21.pdf (last updated Oct 2021). 

Therefore, USCIS’ efforts to minimize the impact of 

safety measures on the agency’s ability to adjudicate 

asylum applications is helping to reduce the 

number of asylum applicants making up the 

pending Form I–765 applicant pool, which is 

helping to reduce the overall Form I–765 

adjudication backlog. 

TABLE 2—IMPACT OF STEADILY DECREASING STAFFING LEVELS ON SCOPS’ FORM I–765 COMPLETIONS

[initial and renewal applications] 

Fiscal year Officer hours allocated Form I–765 completions 

2019 ................ 343,399 ...................................................................................... 1,443,235. 

2020 ................ 327,947 (approximately 4.5 percent fewer than 2019) ............. 1,379,745 (approximately 4.4 percent fewer than 2019). 

2021 ................ 314,924 (approximately 8.3 percent fewer than 2019 and 4.0 

percent fewer than 2020).

1,249,548 (approximately 13.4 percent fewer than 2019 and 

9.4 percent fewer than 2020). 

Note: This data does not include contractor hours, which also were severely impacted by USCIS’ fiscal situation as USCIS was forced to reduce the number of contractors available to assist with case processing. SCOPS’ contractor staff has been reduced by approximately 8.2% since 

October 1, 2020. 

The Field Office Directorate’s 

National Benefit Center (NBC), which 

also adjudicates a number of Form I–765 

applications 81 observed a similar 

reduction in staff and completions. 

TABLE 3—IMPACT OF STEADILY DECREASING STAFFING LEVELS ON NBC’S FORM I–765 COMPLETIONS

[initial and renewal applications] 

Fiscal year Officer hours allocated Form I–765 completions 

2019 ................ 115,510 ...................................................................................... 612,464. 

2020 ................ 112,266 (approximately 2.8 percent fewer than 2019) ............. 605,105 (approximately 1.2 percent fewer than 2019). 

2021 ................ 102,099 (approximately 11.6 percent fewer than 2019 and 9.1 

percent fewer than 2020).

509,973 (approximately 16.7 percent fewer than 2019 and 

15.7 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. 

3. Other Impacts to Operations 

In response to the declaration of a 

public health emergency, USCIS 

instituted a number of changes to 

protect USCIS employees and 

immigration benefit applicants. From 

March 18 through June 3, 2020, USCIS 

closed all field offices and asylum 

offices to the public, nearly halting all 

in-person services.82 At USCIS field 

offices, officers conduct in-person 

interviews related to Form I–485, 

Application to Register Permanent 

Residence or Adjust Status, as well as 

Form N–400, Application for 

Naturalization, to become a U.S. citizen, 

among other work. At USCIS asylum 

offices, officers conduct in-person 

interviews of asylum applicants (using 

Form I–589, Application for Asylum 

and Withholding of Removal). Upon 

reopening to the public, many asylum 

offices operated at lower capacity than 

before the halt in in-person services. 

Interviewing rooms that previously 

accommodated asylum officers, asylum 

applicants, interpreters (if present), and 

attorneys (if present) all in one room, 

now would accommodate just the 

asylum officer, with applicants and any 

other participants each sitting in 

separate interview rooms and 

connecting electronically. This setup 

substantially decreased daily interview 

capacity.83

SCOPS’ service centers and the NBC, 

which are not open to the public, never 

closed, but all Federal functions that 

could be accomplished at an alternate 

location were designated for telework to 

minimize in-person contact and allow 

proper social distancing for Federal and 

contract staff whose work required onsite presence. In the early weeks of 

COVID–19 restrictions, assignments 

were adjusted to provide teleworksuitable work as logistics relating to 

industrial hygiene were put in place to 

expand capacity for on-site functions 

while providing appropriate protections 

for on-site workers. Service centers and 

the NBC continued operations by 

expanding telework capabilities; 

however, logistics associated with 

completing work that could not be 

conducted at home, such as accepting 

filings, mailroom activities, and file 

movement, remained a challenge. There 

was high absenteeism due to COVID–19 

quarantine rules among contractors 

engaged in receipt and file movement 

activities, which created ‘‘frontlogs’’ in 

receipts—delays in entering receipt data 

into USCIS systems—as well as delays 

in other areas requiring physical 

handling of files and mail. Furthermore, 

Form I–765 generally is adjudicated on 


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84Although some Form I–765 applications for 

certain eligibility categories (e.g., (c)(3)(A), F–1 

Pre-completion OPT; (c)(3)(B), F–1 Post-completion 

OPT; and (c)(3)(C), F–1 STEM OPT extension) now 

can be received and adjudicated in an electronic 

system, in early 2020, all Form I–765 applications 

were adjudicated on paper. 85USCIS sought to mitigate the impact of this 

biometrics capture delay by reusing biometrics 

where possible. See, e.g., USCIS News Alert, USCIS 

to Continue Processing Applications for 

Employment Authorization Requests Despite 

Application Support Center Closures (Mar. 30, 

2020), https://www.uscis.gov/news/alerts/uscis-tocontinue-processing-applications-for-employmentauthorization-extension-requests-despite. 

86For example, in general, applicants must pay 

an $85 biometric collection services fee if filing 

with one of the following eligibility categories: 

(c)(8) An applicant with a pending asylum 

application requesting an initial or renewal EAD; 

(c)(33) Requesting consideration of Deferred Action 

for Childhood Arrivals (DACA); (c)(35) A principal 

beneficiary of an approved employment-based 

immigrant petition who is facing compelling 

circumstances; (c)(36) A spouse or unmarried 

dependent child of a principal beneficiary of an 

employment-based immigrant petition who is 

facing compelling circumstances; or (c)(37) An 

applicant for Commonwealth of the Northern 

Mariana Islands long-term resident status. 

87However, the U.S. District Court for the District 

of Maryland’s Sept. 11, 2020, preliminary 

injunction in Casa de Maryland Inc. et al. v. Chad 

Wolf et al., 8:20–cv–02118–PX (D. Md. Sept. 11, 

2020), provided limited injunctive relief to 

members of two organizations, CASA de Maryland 

(CASA) and the Asylum Seeker Advocacy Project 

(ASAP), who file Form I–589 or Form I–765 as 

asylum applicants. Specifically, the court 

preliminarily enjoined enforcement of several 

regulatory changes in the Removal of 30-Day 

Processing Provision for Asylum Applicant-Related 

Form I–765 Employment Authorization 

Applications Rule, 85 FR 37502 (June 22, 2020), 

and the Broader Asylum EAD Rule for CASA and 

ASAP members, including the requirement to 

submit biometric information as part of the filing 

of a Form I–765 based on an asylum application. 

On February 7, 2022, the U.S. District Court for the 

District of Columbia in Asylumworks, et al. v. 

Alejandro N. Mayorkas, et al. vacated these two 

rules entirely. 

88See above section entitled ‘‘Overview of Issues 

Negatively Impacting Form I–765 Processing 

Times.’’ 

89For example, in 2020, an applicant seeking 

employment authorization based on a pending 

adjustment of status application would have 

obtained an EAD valid for 1 year, if eligible. With 

processing times for adjustment of status 

applications extending beyond 1 year, the applicant 

would have to apply to renew the EAD to obtain 

employment authorization while their adjustment 

of status application remains pending. Where 

adjustment of status applications with an 

immediately available immigrant visa are processed 

within the 6-month processing goal, such 

applicants generally should not have to renew their 

EAD as they would receive employment 

authorization incident to their lawful permanent 

resident status upon approval of their adjustment of 

status application. In recognition of prolonged 

processing times for adjustment of status 

applications, USCIS updated its policy guidance to 

provide a 2-year validity period for initial and 

renewal EADs issued based on pending adjustment 

of status applications. See USCIS Policy Manual, 

Policy Alert (PA–2021–10), Employment 

Authorization for Certain Adjustment Applicants 

(Jun. 9, 2021), https://www.uscis.gov/sites/default/ 

files/document/policy-manual-updates/20210609- 

EmploymentAuthorization.pdf. In doing so, USCIS 

attempted to alleviate the burden on adjustment of 

status applicants seeking EADs. Unfortunately, 

USCIS was unable to take similar steps for the 

asylum applicant population, as it was already 

providing 2-year validity periods for employment 

authorization and EADs, the maximum allowed by 

the Broader Asylum EAD Rule. As of December 

2021, the median processing time for affirmative 

asylum applications (Form I–589) is 55.4 months. 

As of December 2021, the median processing time 

for adjustment of status applications (Form I–485) 

is 13.2 months, however some adjustment 

applications remain pending much longer because 

of regression in the cutoff dates used to determine 

when an immigrant visa is immediately available. 

90See Asylum Interview Interpreter Requirement 

Modification Due to COVID–19, 85 FR 59655 (Sept. 

Continued 

a paper receipt file,84 and up until 2020, 

application intake and initial processing 

generally was handled by Federal 

contractors, many of whom were 

terminated due to USCIS’ fiscal troubles 

as detailed above. Proactive adjustments 

to workspaces, schedules, and file 

movement practices restored these 

functions despite a contractor workforce 

shortfall, but adjustments took 

approximately 3–5 months to develop 

and take effect. 

USCIS Application Support Centers 

(ASC), which primarily collect 

biometrics such as photographs and 

fingerprints in relation to immigration 

benefit requests, were similarly 

impacted by the COVID–19 public 

health emergency. ASCs were 

temporarily closed from March 18 

through July 12, 2020, and began a 

phased reopening with limited capacity 

on July 13, 2020. Under normal 

circumstances, individuals who must 

appear at an ASC are scheduled to do 

so within 3–4 weeks of USCIS receiving 

the underlying application; however, 

the lengthy closures created massive 

appointment backlogs. The ASC 

appointment backlog reached its peak of 

1.4 million in January 2021. Although 

this backlog has been largely addressed, 

the downstream effects linger in many 

work streams.85 Historically, there have 

been limited Form I–765 categories that 

require biometrics submission; 86

however, the Employment 

Authorization Applications Rule and 

the Asylum Application, Interview, and 

Employment Authorization for 

Applicants Rule (‘‘Broader Asylum EAD 

Rule’’), 85 FR 38532 (June 26, 2020), 

imposed a biometrics collection 

requirement for initial and renewal 

Forms I–765 in the C08 asylum 

applicant category—which represents 

approximately 58 percent of the renewal 

EAD receipts filed that are eligible for 

the automatic extension. Consequently, 

when ASCs were closed, most Form I– 

765 renewal applications in the C08 

category could not be processed.87

Furthermore, once ASCs reopened, a 

large number of applications of varying 

types needed to be rescheduled, yet 

there were a limited number of ASC 

appointments available. This led to 

delays in applicants receiving ASC 

appointments, which further delayed 

the processing of their applications, 

including Form I–765 renewal 

applications in the C08 category. The 

delay in biometrics capture created an 

interruption to adjudications by 

preventing applications from getting to 

the ‘‘adjudication-ready’’ stage. Many 

categories of I–765s are dependent on 

their own biometrics requirement or a 

biometrics requirement associated with 

an underlying benefit, resulting in 

bottlenecks that slowed overall 

adjudications and increased processing 

times. The new biometrics collection 

requirement for Form I–765 renewal 

applications in the C08 category thus 

played a significant role in the 

downstream effects of ASCs’ temporary 

closures. 

In addition, while adjudication of 

Form I–765 does not generally include 

an in-person interview, some Forms I– 

765 are based on pending applications 

that do involve in-person interviews. 

With the fiscal and operational 

constraints outlined above, USCIS had 

processing delays in adjustment of 

status applications and asylum 

applications; applicants seeking 

employment authorization based on a 

pending adjustment of status 

application or asylum application 

comprise the great majority of the filing 

population seeking renewal EADs and 

eligible for an automatic extension of 

their EADs under 8 CFR 274a.13(d).88

Owing to USCIS’ inability to adjudicate 

interview-dependent adjustment of 

status and asylum applications while its 

offices were closed, those cases were 

pending longer than usual, in addition 

to an influx of new applications. With 

those underlying applications taking 

longer to process, the population of 

applicants who needed to request EAD 

renewals during the pendency of their 

primary applications increased.89

Even though USCIS reopened its 

ASCs, field offices, and asylum offices 

in mid-2020, USCIS still is working to 

return to pre-pandemic levels of 

operation, with varying progress across 

programs. For example, social 

distancing guidelines result in reduced 

interview capacity and productivity for 

some interview-dependent benefit 

requests, including some adjustment of 

status and asylum applications. USCIS 

implemented measures to recapture 

productivity under social distancing 

protocols, including video-assisted 

interviewing, increased use of 

telephonic interpreters,90 expanded 


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23, 2020) (TFR); Asylum Interview Interpreter 

Requirement Modification Due to COVID–19, 86 FR 

15072 (Mar. 22, 2021); and Asylum Interview 

Interpreter Requirement Modification Due to 

COVID–19, 86 FR 51781 (Sept. 17, 2021). 

91As an example, USCIS expanded telework 

flexibility arrangements under which an employee 

could perform the duties and responsibilities of 

such employee’s position, and other authorized 

activities, from an approved worksite other than the 

location from which the employee would normally 

work. In addition, certain telework restrictions were 

lifted (e.g., allowing split shifts, non-standard work 

hours, and mixing telework and leave) so that 

caregivers and parents could meet personal and 

work obligations while working from home. 

92See Impact of Pandemic Response Measures, p. 

6, in Backlog Reduction of Pending Affirmative 

Asylum Cases: Fiscal Year 2021 Report to Congress 

(Oct. 20, 2021), https://www.dhs.gov/sites/default/ 

files/2021-12/USCIS%20-%20Backlog%20

Reduction%20of%20Pending%20Affirmative

%20Asylum%20Cases.pdf. 

93 In the last three fiscal years, the median 

processing time across all form types was 8.7 

months in FY 2021, 8.3 months in FY 2020, and 6.5 

months in FY 2019. 

94For a detailed description of the many 

flexibilities and precautionary measures USCIS 

provides to combat COVID–19, see USCIS’s website 

at https://www.uscis.gov/about-us/uscis-responseto-covid-19 (last updated Mar 30, 2022). 

95See Deadlines for Certain Requests, Notices, 

and Appeals in the USCIS Response to COVID–19 

web page at https://www.uscis.gov/about-us/uscisresponse-to-covid-19 (last updated Mar. 30, 2022). 

96Backlog is defined as the volume of pending 

applications that exceed the level of acceptable 

pending cases. Whether a pending case load is 

acceptable is pegged to the volume of applications 

receipted during the target cycle time period (e.g., 

5 months). The target cycle time refers to the 

processing time goal for a given application type. 

Net backlog is defined similarly to backlog, except 

that the number of pending applications is reduced 

to account for cases in active suspense categories 

(i.e., cases that are deducted from the gross backlog, 

such as cases with a pending Request for Evidence, 

cases awaiting visa availability from the Department 

of State, or cases pending re-examination for an N– 

400, Application for Naturalization). 

97This increase in Form I–765 filings may have 

been driven primarily by litigation and the 

‘‘frontlog’’ of applications at the three USCIS 

lockbox facilities, which receive and process 

applications and payments in Chicago, Illinois; 

Phoenix, Arizona; and Lewisville, Texas. On July 

20, 2020, Casa de Maryland, Inc. filed suit against 

then-Acting DHS Secretary Chad Wolf and DHS to 

enjoin changes to EAD rules for asylum seekers. On 

September 11, 2021, the U.S. District Court of 

Maryland issued a preliminary injunction of the 

new EAD rules. See Casa de Maryland v. Wolf, 486 

F.Supp.3d 928 (D. Md. Sept. 11, 2020). 

Consequently, approximately 23,000 applications 

pending at the USCIS lockbox were rejected in late 

October 2020 for a failure to pay the required 

biometrics fee or a failure to provide proof that the 

applicant was a member of the litigation class. 

These applications were refiled and, coupled with 

the prioritization of initial Form I–765 applications 

under category C08 due to the litigation, led to a 

redirection of resources away from Form I–765 

renewal applications. In addition, as noted above, 

the lockbox was experiencing a ‘‘frontlog’’ of 

applications, which led to a processing delay. 

work flexibilities for USCIS 

employees,91 and remote applicantcentric services such as a pilot remoteattorney participation program.92

However, the impacts of the operational 

disruptions in 2020 are still evident in 

USCIS’ prolonged processing times, 

illustrating USCIS’ continued struggle to 

address the pending cases that accrued 

when offices were closed while 

attempting to keep pace with new 

filings (which, in the case of Form I–765 

renewals, unexpectedly surged in 2021, 

as described below).93

Additionally, USCIS continues to 

provide flexibilities in recognition of the 

pandemic’s ongoing impacts on benefit 

requestors, which in some cases 

negatively impact the efficiency of 

USCIS operations.94 For example, 

USCIS continues to provide 

rescheduling flexibilities for interviews 

and ASC appointments, limit the 

number of staff and members of the 

public that may appear in person at a 

USCIS office, and provide flexibilities 

pertaining to responses to Requests for 

Evidence (RFEs) and Notices of Intent to 

Deny (NOIDs) by considering a response 

received within 60 calendar days after 

the response due date set in the request 

or notice before taking any action.95

While USCIS believes these steps have 

been critical to address the impacts of 

the COVID–19 pandemic, these 

measures have not been implemented 

without costs. Limiting the number of 

in-person staff at any given time may 

reduce the number of interviews USCIS 

can conduct in any given day, although 

USCIS is exploring additional 

alternatives to in-person interviewing 

that may mitigate this impact. Providing 

rescheduling flexibilities for interviews 

and time for responses for RFEs or 

NOIDs also prolong the officer’s 

adjudication times. The downstream 

effect of delays in initial file processing, 

delays at the ASC and field offices, and 

insufficient staffing levels due to USCIS’ 

fiscal situation in calendar years 2019 

and 2020, as well as delays caused in 

certain workloads due to workforce 

shifts to ensure timely adjudication of 

other benefits, contributed to USCIS 

accruing an overall net backlog 96 of 

approximately 5.1 million cases as of 

the end of December 2021, of which 

930,000 (approximately 18%) were 

pending Form I–765 applications. 

C. Sudden Increase in Form I–765 

Filings in 2021 

1. Comparing FY 2021 Receipts to Prior 

Years’ Receipts 

The most recent contributing factor to 

the severe backlog and increased 

processing times for Forms I–765 is a 

substantial and unprecedented 2-month 

increase of Form I–765 renewal filings 

in March and April 2021, and a 

sustained increase in filings thereafter. 

In CY 2019, the average number of 

monthly renewal applications filed for 

the C08, C09, and C10 categories 

combined was 46,715. In CY 2020, the 

average number of monthly renewal 

applications filed for these three 

categories was 43,232. In March 2021, 

the renewal receipt numbers for these 

three categories spiked 56 percent over 

the previous month and 76.4 percent 

over the monthly average total for 2020. 

In April 2021, the renewal receipt 

numbers for these three categories 

remained elevated such that they were 

25.6 percent higher than February 2021, 

and 53.6 percent over the monthly 

average total for 2020. The March and 

April 2021 increase in Form I–765 

renewal applications was unexpected 

based on historical filing patterns and 

appears to be related to litigation.97


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98USCIS is actively working to address prolonged 

processing times affecting applications and 

petitions that form the basis of a Form I–765 filing. 

These measures are described in further detail in 

Section D.1 below. 

99See Background, p. 2, in Backlog Reduction of 

Pending Affirmative Asylum Cases: Fiscal Year 

2021 Report to Congress (Oct. 20, 2021), https://

www.dhs.gov/sites/default/files/2021-12/ 

USCIS%20-%20Backlog%20Reduction

%20of%20Pending%20Affirmative

%20Asylum%20Cases.pdf (‘‘The affirmative 

asylum backlog is the result of a prolonged, 

significant increase in affirmative asylum 

application filings and credible fear screenings, 

which are processed by the U.S. Citizenship and 

Immigration Services (USCIS) asylum offices. 

Between FY 2013 and FY 2017, despite significant 

staffing increases, receipt growth in asylum office 

workloads outpaced the expansion of asylum office 

staffing and the establishment of new or expanded 

facilities needed to support additional staffing 

growth.’’). 

100See Executive Office of Immigration Review 

Adjudication Statistics, Total Asylum Applications 

(Jan 19, 2022), https://www.justice.gov/eoir/page/ 

file/1106366/download. 

101 Data reflects affirmatively filed I–589 asylum 

applications and do not include defensive asylum 

claims before a DOJ EOIR immigration court. See 

USCIS, Number of Service Wide Forms, October 1, 

2021–December 31, 2021, https://www.uscis.gov/ 

sites/default/files/document/reports/Quarterly_All_

Forms_FY2022_Q1.pdf (last updated Feb. 2022). 

102For example, USCIS also encountered large 

increases of filings of Form I–131, Application for 

Travel Document, possibly related to the increase 

in filings of Form I–485, Application to Register 

Permanent Residence. From CY 2020 to CY 2021, 

USCIS observed an overall 25.8 percent increase in 

receipts across form types. Although this represents 

a substantial increase, there was a 29 percent 

increase in Form I–765 renewal applications in the 

auto extension categories. 

TABLE 4—SURGE IN RENEWAL FORM I–765 FILINGS

Month C08 category C09 category C10 category Average total 

February 2021 ................................................................................................................................... 30,857 14,661 8,367 52,885 

March 2021 ....................................................................................................................................... 52,007 19,589 10,840 82,436 

April 2021 .......................................................................................................................................... 42,101 15,189 9,134 66,424 

May 2021 .......................................................................................................................................... 32,751 13,332 7,887 53,960 

In the eight months following April 

2021, the receipt numbers for these 

categories fell to an average of 52,400 

receipts per month, but that was still 21 

percent above the average monthly total 

for CY 2020. The increase in the number 

and duration of pendency of asylum and 

adjustment of status applications, which 

form the basis for the two most 

populous EAD filing categories eligible 

for the automatic extension under 8 CFR 

274a.13(d)(1), may have led to this 

sustained increase in applications for 

initial and renewal employment 

authorization (in the C08 and C09 

categories, respectively), which further 

compounded the Form I–765 

adjudication backlog.98

Specifically, in the years leading up to 

FY 2022, asylum application receipts 

outpaced available resources leading to 

an increase in pending asylum cases, 

both in affirmative and defensive filings, 

as shown in Table 5.99 The increase in 

pending asylum cases contributed to the 

increase in C08 renewal filings in FY 

2021, which further impacted the Form 

I–765 renewal backlog. 

TABLE 5—TOTAL ASYLUM CASES PENDING

DOJ 100 USCIS101 Total 

Total Asylum Cases Pending in: 

FY 2017 (Sep 2017) ............................................................................................................. 377,140 289,835 666,975 

FY 2018 (Sep 2018) ............................................................................................................. 473,510 319,202 792,712 

FY 2019 (Sep 2019) ............................................................................................................. 608,976 339,836 948,812 

FY 2020 (Sep 2020) ............................................................................................................. 647,923 386,014 1,033,937 

FY 2022 (Dec 2021) ............................................................................................................. 628,551 432,341 1,060,892 

The number of employment-based 

adjustment of status applications 

increased significantly in FY 2021, as 

well, due to the inordinate number of 

employment-based visas that became 

available as a result of unusually low 

visa usage in other categories in FY 

2020 due to the COVID–19 pandemic. 

At the start of FY 2021, there were 

approximately 126,000 employmentbased adjustment of status applications 

pending with USCIS. Approximately 

313,000 employment-based adjustment 

of status applications were received 

during FY 2021, which likely 

contributed to the increase in C09 initial 

filings in FY 2021, consequently further 

taxing USCIS’ resources to timely 

process renewal applications. USCIS 

also saw significant increases in filings 

across other benefit request types during 

CY 2021.102

This surge and sustained increase in 

Form I–765 receipts over the course of 

CY 2021 as compared to the previous 

calendar year compounded what 

otherwise might have been a moderate 

Form I–765 backlog and created a 

substantial spike in processing times. In 

CY 2021, USCIS received approximately 

2,550,000 initial and renewal Forms I– 

765, which was 22 percent higher than 

the volume received in CY 2020 

(approximately 2,090,000) and 15 

percent higher than the volume received 

in CY 2019 (approximately 2,210,000). 

Similarly, in CY 2021, USCIS received 

approximately 1,260,000 Form I–765 

renewal applications, which was 21 

percent higher than the volume received 

in CY 2020 (approximately 1,040,000) 

and 13 percent higher than the volume 

received in CY 2019 (approximately 

1,120,000). 

TABLE 5A—INITIAL AND RENEWAL

FORM I–765 FILINGS

Calendar 

year 

Form I– 

765 

filings 

Surge or 

difference 

2019 ..... 2,210,000 

2020 ..... 2,090,000 5 percent lower than 2019. 

2021 ..... 2,550,000 15 percent higher than 2019. 

22 percent higher than 2020. 

TABLE 5B—RENEWAL FORM I–765 

FILINGS

Calendar 

year 

Form I– 

765 

filings 

Surge or 

difference 

2019 ..... 1,120,000 

2020 ..... 1,040,000 7 percent lower than 2019. 

2021 ..... 1,260,000 13 percent higher than 2019. 

21 percent higher than 2020. 

As demonstrated above, calendar 

years 2020 and 2021 were difficult years 

for USCIS because unprecedented 


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103One such process or plan is the Model for 

Operational Planning, which considers the backlog 

and the outlook of future backlogs based on current 

and future staffing. The primary way staffing for 

backlog reduction has taken place is through 

improved efficiencies to current processes as well 

as appropriations from Congress. 

104See Section B.2 for more information on 

USCIS’ use of overtime funds as a tool to manage 

its workload. 

105For example, USCIS completed 15,904 Form 

I–765 C08 renewals in July 2021. After applying 

overtime funds to Form I–765s, USCIS completed 

23,987 and 24,267 Form I–765 C08 renewals in 

August and September 2021, respectively. However, 

USCIS returned to its prior completion rate in 

October 2021 (where USCIS completed 13,932 C08 

renewals) due to such overtime funds no longer 

being available in the new fiscal year. USCIS 

received additional appropriated funding for 

overtime in FY 2022 to apply toward backlog 

reduction efforts, but these funds only became 

available for operational use in early 2022. 

106See, e.g., USCIS Policy Manual, Policy Alert 

(PA–2022–07), Updating General Guidelines on 

Maximum Validity Periods for Employment 

Authorization Documents based on Certain Filing 

Categories (Feb. 7, 2022), https://www.uscis.gov/ 

sites/default/files/document/policy-manualupdates/20220207-EmploymentAuthorization

Validity.pdf. 

107Such a long pause in hiring from May 1, 2020, 

to March 2021 resulted in approximately 2,000 

unfilled vacancies, out of approximately 20,000 

positions across the agency. As of November 6, 

2021, USCIS estimates the number of vacancies had 

risen to approximately 3,000 due to primarily 

internal selections following the hiring freeze, 

although USCIS did also add some positions as 

well. USCIS estimates it will take the agency to the 

end of CY 2022 to fill the current level of vacancies. 

While USCIS did receive $250 million in funding 

from Congress for application processing, backlog 

reduction, and the refugee program in late 

September 2021, it will take time for such funding 

to translate to a significant increase in additional 

officers proficient at adjudicating and completing 

Form I–765 renewal applications. See Extending 

Government Funding and Delivering Emergency 

Assistance Act, 2022, Public Law 117–43 (Sept. 30, 

2021). USCIS has identified Form I–765 as well as 

Form I–485 and Form I–589 (which represent two 

of the three major filing categories seeking renewal 

EADs and eligible for automatic extension of the 

prior EAD) for inclusion in backlog reduction 

efforts funded in part by appropriations. The $250 

million appropriated through Public Law 117–43, 

however, will only partly fund the 1,316 positions 

needed for all of USCIS’ backlog reduction 

initiatives; therefore, USCIS continues to seek 

additional funding as requested in the FY 2022 

President’s Budget ($345 million). 

financial strains led to staffing issues, 

resulting in an inability to handle the 2- 

month spike and monthly increase in 

filings in CY 2021 over CY 2020. The 

average monthly receipts in 2021 for the 

automatic extension categories were 

60,300, which was 13,500 per month (or 

29 percent) higher than 2020 monthly 

averages. In addition to this higher 

overall receipt volume in 2021, there 

was a surge in receipts in March 2021 

(88,500) and April 2021 (71,200) that 

led to a rapid increase in pending 

applications. On top of the higher 

receipt volumes, due to staffing issues, 

the average number of monthly 

completions in 2021 was 33,900 per 

month, which was 10,600 per month (or 

24 percent) lower than 2020 monthly 

averages. The combination of higher 

receipts and lower completions led to 

increased processing times, which 

downstream resulted in higher numbers 

of renewal applications pending past 

the 180-day automatic extension period. 

2. Workforce Planning Shortfall 

USCIS normally uses an annual 

workforce planning process to assess 

staffing requirements, known as the 

Staffing Allocation Model (SAM). The 

SAM is focused on allocating staff to 

process the anticipated number of new/ 

incoming receipts for all workloads for 

the next fiscal year. Workforce planning 

is based on USCIS estimates for each 

adjudication workload for the coming 

year. These workload estimates are 

established through a cross-disciplinary 

committee, the Volume Projection 

Committee, that forecasts receipts on the 

basis of statistical modeling and any 

recent policy changes. In 2021, new 

receipts rose too rapidly to provide new 

staffing allocations within the SAM for 

both new receipts and backlog cases. In 

other words, despite the predictions 

based on data and historic trends, the 

Form I–765 filings in FY 2021 were 

significantly greater than forecasted. 

USCIS relies on a combination of 

internal processes and plans to plan for 

backlog reduction.103

D. Emergency Temporary Solution To 

Address Current Backlog 

The sudden 2-month increase in Form 

I–765 renewal filings in March and 

April of 2021 and sustained overall 

increase in Form I–765 renewal receipts 

thereafter prompted USCIS to directly 

address the growing backlog of Form I– 

765 filings. Historically, USCIS had 

sufficient resources to address growing 

backlogs by allocating additional 

officers to a particular workload. 

However, USCIS was unable to do so in 

the summer of 2021 due to 

understaffing, including reduced 

contracting resources resulting from the 

prior years’ fiscal situation; the broad 

scope of backlogs across numerous 

benefit types; and competing priorities, 

as discussed above. USCIS was, 

however, able to apply overtime funds 

to the renewal Form I–765 workload in 

an attempt to control the growing 

backlog during the last quarter of FY 

2021.104 Indeed, USCIS observed an 

increase in Form I–765 renewal 

completions, however, it was not 

enough to match the increased volume 

of receipts and therefore USCIS’ 

responsive measures mitigated but did 

not halt the backlog growth.105

Considering the operational constraints 

described above, USCIS also explored 

programmatic improvement initiatives 

and updates to its policy and 

operational guidance in the summer of 

2021 to attempt to address prolonged 

Form I–765 processing times and their 

impact. For example, USCIS launched a 

backlog reduction effort in September 

2021 to assess other options available to 

the agency to address the severe and 

growing Form I–765 backlogs.106 It has 

become apparent to USCIS, however, 

that its limited resources are insufficient 

to appropriately address the growing 

backlogs, with the incoming volume of 

Form I–765 renewal filings showing no 

signs of slowing. Further, USCIS has 

assessed that the conventional measures 

USCIS had applied (e.g., overtime) and 

was continuing to explore (e.g., through 

the backlog reduction effort) will not be 

able to timely address the impending 

loss of employment authorization and 

EAD validity. 

1. Current Measures To Reduce the 

Backlog and Reduce Processing Times 

Addressing Form I–765 processing 

times is a priority for USCIS. Backlogs 

in general are a significant concern for 

the applicants who are applying for 

benefits with USCIS because, as the 

backlogs increase, applicants and 

petitioners experience longer wait times 

to receive a decision on their benefit 

requests. This is especially concerning 

where the backlog involves employment 

authorization, which is critical to 

applicants’ and their families’ 

livelihoods as well as U.S. employers’ 

continuity of operations. USCIS 

understands the impact that delays in 

receiving decisions and documentation 

have on applicants and petitioners and 

is striving to address the backlogs and 

the resulting negative consequences 

through a number of measures, 

including but not limited to this TFR. 

USCIS continues to recover from the 

pandemic-related impacts on operations 

and revenue, leading to a gradually 

improving fiscal situation, return to 

stability, and renewed capacity to 

undertake initiatives to reduce backlogs. 

USCIS lifted the agency-wide hiring 

freeze in March 2021. With the hiring 

freeze lifted, USCIS was able to begin 

hiring staff in an attempt to return to 

pre-pandemic staffing levels.107 Initial 

hiring was largely internal in order to 

fill promotional vacancies, with public 

job announcements to hire from outside 

USCIS following. This effort’s impact is 

not realized immediately, as it is 

lengthy, time-consuming, and ongoing. 


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108See, e.g., USCIS Policy Manual, Policy Alert 

(PA–2021–25), Employment Authorization for 

Certain H–4, E, and L Nonimmigrant Dependent 

Spouses (Nov. 12, 2021), https://www.uscis.gov/ 

sites/default/files/document/policy-manualupdates/20211112-EmploymentAuthorization.pdf. 

See USCIS Policy Manual, Policy Alert (PA–2021– 

10), Employment Authorization for Certain 

Adjustment Applicants (June 9, 2021), https://

www.uscis.gov/sites/default/files/document/policymanual-updates/20210609-Employment

Authorization.pdf. See USCIS Policy Manual, 

Policy Alert (PA–2022–07), Updating General 

Guidelines on Maximum Validity Periods for 

Employment Authorization Documents based on 

Certain Filing Categories (Feb. 7, 2022), https://

www.uscis.gov/sites/default/files/document/policymanual-updates/20220207-Employment

AuthorizationValidity.pdf. 

109Efforts to improve timely processing and 

remove bureaucratic hurdles are underway. One of 

the first initiatives is to automatically identify 

pending applications that are no longer needed (for 

example, a Form I–765 based on a pending 

adjustment application is moot upon the applicant’s 

adjustment of status to that of a lawful permanent 

resident) and close them, thus eliminating the need 

for an officer to review and allowing other 

applications to proceed to adjudication more 

quickly. While initial results of such initiatives are 

promising, it is too early to tell what the long-term, 

sustained impacts on processing times will be. 

USCIS continues to look for additional areas where 

systems can be used to identify and complete 

simple functions that free up officer resources for 

adjudicative work. 

110An asylee cannot apply for initial employment 

authorization earlier than 150 calendar days after 

the date USCIS or the immigration court accepts the 

asylum application. 111This was the maximum time allowed under 

regulation until February 7, 2022, when the U.S. 

District Court for the District of Columbia vacated 

parts of 8 CFR 274a.12(c)(8) (‘‘Employment 

authorization may be granted according to the 

provisions of 8 CFR 208.7 of this chapter in 

increments to be determined by USCIS but not to 

exceed increments of two years.’’). See 

Asylumworks, et al. v. Alejandro N. Mayorkas, et 

al., No. 20–cv–3815, 2022 WL 355213 (D.D.C. Feb. 

7, 2022). USCIS is considering what, if any, steps 

it may take in light of this ruling. 

112The extended wait time for ayslum 

applications particularly affects many defensive 

asylum filings in immigration court. (A noncitizen 

may apply for asylum affirmatively with USCIS or 

defensively in immigration court.) As of December 

31, 2021, there were 628,551 asylum applications 

pending in immigration courts. See Executive 

Office for Immigration Review Adjudication 

Statistics, https://www.justice.gov/eoir/page/file/ 

1106366/download (last visited Apr. 14, 2022). This 

DOJ data also implies that 156,127 and 90,880 cases 

were completed in FY2020 and 2021, respectively, 

or an average of 123,504 cases a year. In the first 

quarter of FY2022, 42,090 cases were completed. If 

this rate continues, it would take approximately 4.2 

years to complete the adjudication of the total 

628,551 asylum cases pending in the courts as of 

December 31, 2021. 

113See DHS Office of Immigration Statistics, 2019 

Yearbook of Immigration Statistics, Table 6, Persons 

Obtaining Lawful Permanent Resident Status by 

Type and Major Class of Admission: Fiscal Years 

2010 2019 (Sep. 2020), https://www.dhs.gov/sites/ 

default/files/publications/immigration-statistics/ 

yearbook/2019/yearbook_immigration_statistics_

2019.pdf. 

114See News Release, USCIS Announces FY 2021 

Accomplishments, (Dec. 15, 2021), https://

www.uscis.gov/newsroom/news-releases/uscisannounces-fy-2021-accomplishments. 

115Applicants from China and India seeking 

adjustment of status based on the employmentbased third preference category experienced visa 

retrogression in their respective filing categories as 

of October 1, 2021, impacting approximately 75,000 

applicants. For more information on visa 

retrogression, see https://www.uscis.gov/green-card/ 

green-card-processes-and-procedures/visaavailability-priority-dates/visa-retrogression (last 

updated Mar. 8, 2018). Based on a rate of 

approximately 8,000 visa numbers becoming 

available for these affected categories per year, as 

was the case in FY 2019, it may take more than 9 

years for visas to become available for these 

approximately 75,000 applicants. In the interest of 

reducing the burden on both the agency and the 

public, on June 9, 2021, USCIS increased the 

maximum validity period for initial and renewal 

EADs issued to applicants for adjustment of status 

under INA 245 from 1 year to 2 years based on 

average processing times. See USCIS Policy 

Manual, Policy Alert, Employment Authorization 

for Certain Adjustment Applicants (Jun 9, 2021), 

https://www.uscis.gov/sites/default/files/document/ 

policy-manual-updates/20210609-Employment

Authorization.pdf. USCIS’ return to its processing 

goal of 3 months for Form I–765 renewal 

applications is critically important for such 

applicants who may rely on timely renewals 

multiple times. 

116See 8 CFR 274a.12(a)(1). 

The hiring process itself is lengthy as it 

includes posting the job announcement, 

reviewing resumes, providing qualified 

candidates’ information to the hiring 

office, assessments, interviews, 

selections, and background checks prior 

to a new employee entering on duty. 

New hires then go through orientation, 

basic training, duty-specific training and 

mentoring. The entire process from 

posting to a new hire reaching full 

proficiency takes several months. 

USCIS is also in the process of 

developing a new Fee Rule to recoup 

adjudicatory costs incurred at current 

levels, and to support the agency’s 

ability to match staffing levels with its 

workload in a sustainable way. To effect 

more immediate change with EAD 

renewals, USCIS reviewed its policies 

and procedures to update policy 

guidance,108 expanded use of overtime 

hours as funding permitted, and applied 

innovative approaches to backlog 

reduction using technology in strategic 

ways, which initially is showing 

promising results.109 In addition, USCIS 

is focused on addressing prolonged 

processing times affecting applications 

and petitions that form the basis of a 

Form I–765 filing and, therefore, 

indirectly impact Form I–765 renewal 

processing times, such as in the case of 

asylum or adjustment of status 

applications where a Form I–765 filing 

is based on the continued pendency of 

such application. 

For example, an applicant seeking 

asylum is eligible for employment 

authorization on the basis of the 

pendency of the asylum application.110

USCIS currently grants employment 

authorization based on a pending 

asylum application in 2-year 

increments.111 If an asylum application 

is pending for up to 5 years or more, as 

is currently the case for some 

applications,112 then an applicant must 

file to renew employment authorization 

at least twice. If processing times for 

asylum applications were reduced to 3 

years, the applicant would need only 

file to renew employment authorization 

once, saving USCIS adjudicatory 

resources. 

Another area in which USCIS is 

actively prioritizing its workload is 

employment-based adjustment of status 

applications as backlogs in adjudication 

of these applications also have 

downstream effects on EAD application 

adjudications, as described above. 

While USCIS normally processes 

approximately 115,000 employmentbased adjustment of status applications 

annually,113 generally to correspond 

with the number of available 

employment-based immigrant visas 

minus the number typically issued by 

Department of State annually, USCIS 

prioritized processing employmentbased adjustment applications to 

maximize available visa usage in FY 

2021. By the end of FY 2021, USCIS had 

processed and approved approximately 

172,000 employment-based adjustment 

of status applications, an increase of 

approximately 50 percent above the 

typical baseline; 114 however, 

approximately 257,000 remained 

unadjudicated, including approximately 

75,000 impacted by priority date 

retrogressions that may leave them 

pending for many years, and thereby 

eligible for C09 EADs over this extended 

period.115 To the extent possible, USCIS 

is committed to prioritizing 

employment-based adjustment of status 

applications to utilize the available visa 

numbers each fiscal year; doing so 

relieves applicants from filing Forms I– 

765 to seek renewal EADs while their 

adjustment of status application remains 

pending since lawful permanent 

residents are employment authorized 

incident to status.116 Therefore, the 

more adjustment of status applications 

USCIS is able to process, the fewer Form 

I–765 renewal applications USCIS will 

receive (based on pending INA 245 

adjustment of status applications). 

DHS expects that USCIS’ backlog 

reduction efforts in these areas will 

positively impact Form I–765 backlogs 

by reducing the volume of Form I–765 

filings. However, we anticipate that the 

impact of these backlog reduction efforts 

will not be immediately felt by 

applicants with expiring or expired 

employment authorization. Therefore, 

DHS has determined that in the interim, 

urgent action is needed to address the 


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117With certain exceptions, if a noncitizen 

continues to engage in or accepts unauthorized 

employment, the individual may be barred from 

adjusting status to that of a lawful permanent 

resident under INA 245. See INA 245(c)(2) and 

(c)(8), 8 U.S.C. 1255(c)(2) and (c)(8). 

118See section II, Purpose of this Temporary Final 

Rule. 

119See section II, Purpose of this Temporary Final 

Rule, Table 1. Recent Dramatic Growth in 50th and 

93rd Percentile Processing Times for Form I–765 

Renewal Applications Filed by Top Three Filing 

Categories. 

120Of the 66,000 applicants, 63,000 fall into the 

C08, C09, and C10 categories and, therefore, are 

facing a gap of employment authorization. The 

remaining 3,000 applicants fall into the following 

EAD categories: Refugees (A03 under 8 CFR 

274a.12(a)(3)), asylees (A05 under 8 CFR 

274a.12(a)(5)), and withholding of deportation or 

removal beneficiaries (A10 under 8 CFR 

274a.12(a)(10)). Such applicants are still authorized 

for employment incident to status but would no 

longer have a valid EAD. For purposes of this rule’s 

analysis, DHS has determined that it is appropriate 

to include the 3,000 applicants who are 

employment authorized incident to status given 

their reasonable reliance on USCIS’ timely issuance 

of their renewal EADs. Also, it is unknown how 

many applicants in this group have in their 

possession acceptable alternative documentation 

they can show their employers in order to maintain 

their employment (e.g., Form I–94 or an 

unrestricted Social Security card together with an 

unexpired State-issued driver’s license pursuant to 

8 CFR 274a.2(b)(1)(v)). Moreover, through its public 

outreach efforts, DHS has learned that job loss has 

affected this group on account of the lack of 

sufficient documentation to present to employers 

for Form I–9 completion. 

121All U.S. employers must properly complete 

Form I–9 for each individual they hire for 

employment in the United States. See I–9, 

Employment Eligibility Verification USCIS web 

page, https://www.uscis.gov/i-9 (last updated Apr 

13, 2021). 

122As noted elsewhere in this preamble, the 

number of applicants who face expiration of the upto-180-day automatic-extension each month is 

approximately 30,000. However, as some applicants 

who are already past the 180-day automatic 

extension period will receive final adjudication of 

their application each month, the total number of 

those in the population past the 180-day period is 

expected to increase by 14,500 each month rather 

than by 30,000. 

123As mentioned above in section II.D.1, USCIS 

had approximately 3,000 vacancies, 905 of which 

were officer positions in FOD and SCOPS, the two 

directorates that adjudicate Form I–765 renewal 

applications filed in categories eligible for 

automatic extension of EADs. Even after USCIS fills 

an Immigration Services Officer (ISO) position, 

there is a delay between the time of hiring and the 

time the ISO is fully trained and able to complete 

adjudications to meet productivity targets. 

plight of a growing number of EAD 

renewal applicants who have 

experienced or may in the near future 

experience a gap in their employment 

authorization and/or EAD because of 

USCIS’ unprecedented processing times. 

2. Existing Automatic Extension Period 

of Up to 180 Days Temporarily Not 

Sufficient 

DHS is aware of the importance of 

employment authorization and EADs as 

evidence of employment authorization 

for applicants’ and their families’ 

livelihoods, as well as their U.S. 

employers’ continuity of operations and 

financial health. DHS is also aware of 

the potential detrimental impact that 

gaps in employment authorization may 

have on an applicant’s eligibility for 

future immigration benefits, should the 

applicant engage in unauthorized 

employment during the gap,117 and on 

the U.S. employer’s responsibilities 

under the INA. DHS also acknowledges 

that the substantial increase in backlogs 

and prolonged processing times across 

USCIS-administered benefit requests are 

not the fault of applicants but have had 

and continue to have significant adverse 

consequences for applicants and 

employers awaiting a USCIS decision on 

pending Form I–765 renewal 

applications. 

As noted, the current 180-day 

automatic extension under 8 CFR 

274a.13(d)(1) for certain applicants who 

have properly filed Form I–765 for 

renewal of their employment 

authorization and/or EADs is an 

insufficient time period to ensure 

against lapses in employment 

authorization and/or EAD validity.118 In 

December 2020, the median processing 

time for Form I–765 renewal 

applications eligible for the automatic 

extension was 3.6 months (close to 

USCIS’ processing goals), ranging from 

2.5 months to 5 months.119 At the end 

of December 2020, there were 

approximately 3,300 applicants whose 

Form I–765 renewal applications were 

still pending past their 180-day autoextension period. 

However, Form I–765 processing 

times and Form I–765 renewal 

applications pending beyond the 180- 

day period increased rapidly in the 

second half of CY 2021 and continue to 

increase in CY 2022 despite backlog 

mitigation efforts. As of December 31, 

2021, the processing time for EAD 

renewal applications (all categories) 

completed by USCIS ranged from 6.1 

months (median) to 10.1 months (93rd 

percentile) and there were 

approximately 66,000 applicants whose 

Form I–765 renewal applications were 

still pending past their 180-day 

automatic extension period. This means 

that, as of December 31, 2021, 

approximately 66,000 applicants—at no 

fault of their own and because of 

circumstances currently faced by 

USCIS—were not authorized to work 

and/or no longer had a valid EAD to 

evidence their employment 

authorization,120 potentially 

jeopardizing their families’ livelihoods. 

TABLE 6—NUMBER OF FORM I–765 

RENEWALS PENDING PAST THEIR

180-DAY AUTO-EXTENSION PERIOD

Date 

Median 

processing 

time 

(months) 

Renewals pending past 

180-day period 

December 

31, 2020.

3.6 3,300 renewal applications (approx.). 

December 

31, 2021.

8.0 66,000 renewal applications (approx.). 

This also means that a large majority 

of these workers, and their U.S. 

employers, would not be able to meet 

the verification or reverification 

requirement for completion of 

Employment Eligibility Verification 

(Form I–9),121 resulting in terminations 

and incurring the costs of finding 

replacement workers, if possible. If DHS 

does not immediately increase the 180- 

day automatic extension period, the 

total number of applicants with renewal 

applications pending past the 180-day 

auto-extension period is expected to 

increase by approximately 14,500 per 

month.122 This estimated monthly 

increase of 14,500 applicants is based 

on recent trends. 

Although USCIS has been diligently 

trying to reduce the adjudication 

backlog and EAD processing times, 

USCIS is unable to quickly return to its 

processing goals due to the volume of 

pending cases, new filings that USCIS 

continues to receive, and time needed to 

increase staffing needs to meet existing 

demands. As of December 31, 2021, 

USCIS had approximately 520,000 

pending EAD renewal requests in 

automatic extension-eligible categories 

and continues to receive approximately 

55,000 additional Form I–765 

applications in automatic extensioneligible categories per month. These 

additional renewal applications are 

adding to the current backlog, given that 

USCIS currently completes 

approximately 33,000–34,000 such 

requests per month. Further, as of 

November 6, 2021, 905 out of 8,721 (or, 

10% of) officer positions allocated to the 

Field Office Directorate (FOD) and the 

Service Center Operations Directorate 

(SCOPS) were vacant and USCIS 

estimates it may take at least until the 

end of CY 2022 for USCIS to fill such 

vacancies.123

The impact of the prolonged 

processing times is stark when 

considering the number of individuals 

who will lose employment 

authorization and/or EAD validity each 

month if immediate action is not taken. 

As indicated, the total number of 

renewal applications pending past the 

180-day period, which was 

approximately 66,000 as of December 


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124According to the U.S. Bureau of Labor 

Statistics (BLS), on the last business day of January 

2022, there were 11.3 million job openings and 6.3 

million unemployed people. See U.S. Department 

of Labor, U.S. Bureau of Labor Statistics, Job 

Openings and Labor Turnover—January 2022 (Mar. 

9, 2022), https://www.bls.gov/news.release/pdf/ 

jolts.pdf; U.S. Department of Labor, U.S. Bureau of 

Labor Statistics, The Employment Situation— 

February 2022 (Mar. 4, 2022), https://www.bls.gov/ 

news.release/pdf/empsit.pdf. From June 2021 

through January 2022, the ratio of unemployed 

persons per job opening was below 1.0, meaning 

that there were more job openings than individuals 

seeking work. For context, there were roughly 0.8 

unemployed persons per job opening in January 

and February 2020 before COVID. U.S. Department 

of Labor, U.S. Bureau of Labor Statistics, Number 

of unemployed persons per job opening, seasonally 

adjusted (Jan. 2007 through Jan. 2022), https://

www.bls.gov/charts/job-openings-and-laborturnover/unemp-per-job-opening.htm (last visited 

Mar. 14, 2022). See also Christopher Decker, 

Lurking behind lackluster jobs gain are a stagnating 

labor market and the threat of omicron, The 

Conversation, Jan. 7, 2022, 12:50 p.m. EST, https:// 

theconversation.com/lurking-behind-lacklusterjobs-gain-are-a-stagnating-labor-market-and-thethreat-of-omicron-174534; Ben Casselman, More 

quit jobs than ever, but most turnover is in low-wage 

work., N.Y. Times, Jan. 4, 2022, https://

www.nytimes.com/2022/01/04/business/economy/ 

job-openings-coronavirus.html; Lucia Mutikani, 

U.S. labor market recovery gaining steam; 

unemployment rolls smallest in 52 years, Reuters, 

Feb. 24, 2022, 11:48 a.m. EST, https://

www.reuters.com/business/us-labor-marketrecovery-gaining-steam-unemployment-rollssmallest-52-years-2022-02-24/. 

125See U.S. Department of Labor, U.S. Bureau of 

Labor Statistics, Civilian labor force participation 

rate (Feb. 2002 through Feb. 2022), https://

www.bls.gov/charts/employment-situation/civilianlabor-force-participation-rate.htm (last visited Mar. 

8, 2022). 

126 DHS is applying this rule to all renewal EAD 

application categories eligible for automatic 

extension pursuant to 8 CFR 274a.13(d), even 

though some of these categories currently 

experience processing times that do not raise a risk 

of the applicant experiencing a lapse in 

employment authorization or documentation. As 

stated earlier, 95 percent of applications fall within 

the C08, C09, and C10 categories. DHS has made 

this decision because it has determined that it 

would not be operationally practical for USCIS to 

implement a different approach; making 

distinctions among categories would cause 

confusion among employers and employees; and 

backlogs and processing times may yet increase for 

these other categories. 

127The estimated processing time is calculated 

using the current number of pending renewal 

applications as of December 31, 2021 (520,000), 

adding in the estimated 55,000 new incoming 

receipts each month, and subtracting the 34,000 

estimated completions each month to estimate the 

pending inventory at the end of December 2022. 

Next, the USCIS cycle time methodology is applied 

to calculate the processing time statistic (see ‘‘Cycle 

Time Methodology’’ on the USCIS processing times 

website at https://egov.uscis.gov/processing-times/ 

more-info (last visited Apr 19, 2022)). The upper 

range value of 18 months is estimated by 

multiplying the cycle time by 1.3 based on the cycle 

time methodology. Note that individual offices may 

have higher or lower processing times, but the 

general USCIS-wide processing times likely would 

fall in the 14- to 18-month range. 

128These projections are based on USCIS 

processes in place as of December 31, 2021, and do 

not account for other changes USCIS is exploring 

outside of this TFR and that may be implemented 

concurrent with this TFR. USCIS is committed to 

doing everything possible under the law and 

current resource availability to mitigate the impact 

of EAD renewal application processing delays on 

applicants. 

129USCIS has determined that a processing time 

of 3 months for Form I–765 renewals would suffice 

to prevent lapses in employment authorization for 

most applicants who are eligible for the up to 180- 

day automatic extension. See 80 FR at 81911 (AC21 

NPRM). See 81 FR at 82398 (AC21 Final Rule). 

31, 2021, is expected to increase by 

approximately 14,500 each month; that 

monthly figure represents 

approximately 10,500 asylum 

applicants, 3,000 adjustment of status 

applicants, and 1,000 suspension/ 

cancellation applicants per month. 

DHS therefore has determined that an 

automatic extension period of up to 180 

days at 8 CFR 274a.13(d) is temporarily 

no longer sufficient to meet its original 

purpose and goal for which it was 

implemented: To prevent and/or 

mitigate the risk of gaps in employment 

authorization and documentation for a 

majority of eligible applicants. Due to 

the presently insufficient staffing levels, 

which may take USCIS at least until the 

end of CY2022 to fill and additional 

time to train, USCIS may be unable to 

significantly increase its rate of 

completion in the immediate term, and 

therefore, currently may be unable to 

meaningfully reduce the volume of 

pending cases while also keeping pace 

with the inflow of Form I–765 filings. 

While USCIS will continue to explore 

ways to improve adjudicative 

efficiencies in the short and long term, 

USCIS expects Form I–765 backlogs will 

continue in the immediate future as it 

works to implement changes to improve 

Form I–765 processing efficiencies, hire 

and train new officers, and take 

additional steps to reduce the backlog 

and processing times. This temporary 

and extraordinary circumstance has 

created an emergent and urgent 

situation for noncitizens and U.S. 

employers as gaps in employment 

authorization and documentation have a 

highly detrimental impact on noncitizen 

workers and their U.S. employers. This 

is taking place at a time when such 

employers already are facing 

unprecedented workforce disruptions 

due to the COVID crisis, which further 

underscores the importance of 

immediate action.124 While the high 

unemployment rate has declined 

significantly, the United States is now 

experiencing high demand for labor as 

compared to the available supply of 

workers. As of February 2022, the labor 

force participation rate was at 62.3 

percent, having recovered about 66 

percent of what was lost at height of the 

COVID–19 pandemic compared with the 

February 2020 rate of 63.4 percent.125

3. Temporary 360-Day Increase Beyond 

180 Days Needed for 540-Day Period 

DHS has determined that providing 

additional time beyond the current 180 

days during which an eligible 

applicant’s employment authorization 

and/or EAD are automatically extended 

is necessary to mitigate the risk to 

applicants of incurring a lapse in 

employment authorization or 

documentation while USCIS works 

toward reducing processing times.126 As 

stated above, USCIS receives 

approximately 55,000 Form I–765 

renewal requests per month and 

completes approximately 33,000–34,000 

requests per month, leading to the 

growing backlog. Without intervention, 

this processing rate could result in a 

median processing time of 14.2 months 

for all Form I–765 renewals by the end 

of December 2022. Considering the 

current range of processing times, a 

significant number of these renewal 

applications likely would take longer 

than the 14.2-month median time, up to 

18 months.127

Based on the trend USCIS has 

observed in the growth of processing 

times for Form I–765 renewal 

applications in the past year (see section 

II.A.Table1 for more details), and 

USCIS’ projection of similar growth 

through the end of CY 2022,128 DHS 

calculated that a temporary increase of 

360 days (beyond the 180-day period) 

for a total of 540 days, or approximately 

18 months) is an appropriate increase of 

the automatic extension period. Such 

period better reflects current and 

potential processing times for Form I– 

765 renewals. By extending the 

automatic extension period, this TFR 

therefore is intended to reduce the 

potential for disruptions in employment 

authorization and EAD validity for those 

who otherwise qualify for an automatic 

extension while USCIS continues to 

work to reduce its processing times to 

return to its goal of processing Form I– 

765 within 3 months. 

To determine how long DHS should 

provide this temporary increased 

automatic extension period, DHS 

assessed the pending and incoming 

volume of Form I–765 renewal filings 

against USCIS’ resources. As of 

December 31, 2021, USCIS had 

approximately 520,000 pending EAD 

renewal requests in automatic 

extension-eligible categories. To achieve 

USCIS’ processing goal of 3 months,129

USCIS must keep pace with the 

incoming volume (in other words, 

complete approximately 55,000 Form I– 

765 renewal requests in automatic 


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26630 Federal Register / Vol. 87, No. 86 / Wednesday, May 4, 2022 / Rules and Regulations 

130USCIS estimates that 150,000–200,000 

pending requests translates roughly to a 3-month 

processing time, as the figure reflects 3 months’ 

worth of Form I–765 renewal receipts. 

131This figure is based on an analysis of historic 

rates of completion. Between FY 2019 and FY 2021, 

the total officer hours for all Form I–765 processing 

(initials and renewals for all categories, including 

non-automatic extension categories) ranged from 

approximately 460,000 (FY 2019) to 420,000 (FY 

2021), the equivalent of approximately 38,300 to 

35,000 officer hours per month to process 

approximately 153,200 to 140,000 cases per month. 

Therefore, each case took an average of 15-minutes 

to process. Based on the USCIS Volume Projection 

Committee forecasts, USCIS expects to receive 

about 2.2 million Form I–765s in FY 2022 and FY 

2023. Using the 15-minute per case factor, and 

based on the 2.2 million projections, USCIS would 

need to expend approximately 45,800 officer hours 

a month to meet incoming demand or increase 

adjudication efficiencies through hiring, resource 

allocation, and efficiency gains. 

132While USCIS expects to return to its 3-month 

processing goal by the end of the 18-month period, 

DHS will continue to provide eligible renewal 

applicants up to 540 days of automatic extension 

as outlined in this rule throughout the entirety of 

the 18-month period for ease of administrability, to 

mitigate the potential for confusion among the 

regulated public, and in recognition of the potential 

that circumstances outside of USCIS’s control may 

frustrate this expectation. Providing a set amount of 

additional automatic extension time for a set time 

period is the least administratively burdensome 

approach, allowing the agency to focus its limited 

resources on addressing the lengthy processing 

times themselves. Additionally, DHS anticipates 

that this approach is the least burdensome for the 

public, including employees and employers as well, 

since the temporary solution remains clear, can be 

relied upon, and can be planned for, and otherwise 

operates in the same way as the existing automatic 

extension described in 8 CFR 274a.13(d)(1). DHS 

acknowledges that the utility of the additional 

automatic extension time may diminish toward the 

end of the 18-month period (or sooner, if USCIS 

achieves its processing goals earlier than 

anticipated, due in part to backlog reduction efforts 

discussed in Section II.D.1. or to other factors yet 

unknown or a combination of the two). However, 

DHS believes that such consequence is acceptable 

and appropriately balances competing policy 

concerns because shorter processing times 

ultimately mean applicants will receive a decision 

on their Form I–765 renewal application sooner 

and, in that event, will rely less on the automatic 

extension period. 

133See INA sec. 274A, 8 U.S.C. 1324a. 

134By way of example, if an applicant timely filed 

a Form I–765 renewal application that is still 

pending and the expiration date on the front of the 

applicant’s EAD is June 1, 2021, then the 

applicant’s 180-day automatic extension expired 

November 28, 2021. If the TFR is published on 

April 1, 2022, then the applicant’s EAD 

automatically becomes valid from April 1, 2022, up 

to November 23, 2022, which is 540 days after June 

1, 2021, the expiration date on the face of the EAD. 

If the employee in this example worked without 

authorization between November 29, 2021, and 

March 31, 2022, however, the employee and 

employer may be subject to any consequences 

outlined in the law. 

135For example, if an applicant timely filed a 

Form I–765 renewal application that is still pending 

and the expiration date on the front of the 

applicant’s EAD is June 1, 2021, then the 

applicant’s 180-day automatic extension expired 

November 28, 2021. If the TFR is published and 

effective on April 1, 2022, then the applicant’s EAD 

automatically becomes valid from April 1, 2022, up 

to November 23, 2022, which is 540 days after June 

1, 2021, the expiration date on the face of the EAD. 

If the employee in this example worked without 

authorization between November 29, 2021, and 

March 31, 2022, however, the employee and 

employer would be subject to any consequences 

outlined in the law. 

136 720 days is the amount of time needed to 

cover the up to 540-day automatic extension and to 

account for the fact that renewal applicants may file 

their EAD renewal application up to 180 days 

before their EAD expires. 

extension-eligible categories per month) 

in addition to reducing the pending 

volume of renewal requests from 

520,000 to 150,000–200,000.130 USCIS 

determined that, as of May 4, 2022, the 

maximum number of officer hours it can 

devote to Form I–765 renewal requests 

in the automatic extension-eligible 

categories is 217,800 per year, based on 

its resources and capacity. By 

comparison, USCIS devoted a total of 

approximately 432,500 officer hours to 

all Form I–765 adjudications in FY 

2021. 

USCIS calculated that, if it applied 

217,800 officer hours at approximately 

15 minutes per Form I–765 131 per 

month, to keep pace with the incoming 

flow of 55,000 new renewal requests as 

well as to reduce the volume of pending 

requests from 520,000 to 150,000– 

200,000, it would take USCIS 540 

days—or approximately 18 months—to 

reach its goal of processing Form I–765 

renewal applications within 3 months. 

Therefore, DHS has concluded that the 

temporary 360-day increase to the 

automatic extension time period must 

be in place for 540 days for those with 

pending renewal applications during 

this period. 

Applicants who file a Form I–765 

renewal application after this filing 

timeframe and who are eligible for an 

automatic extension of their 

employment authorization and/or EADs 

will receive the 180-day automatic 

extension period currently provided at 8 

CFR 274a.13(d)(1). DHS expects that, by 

the close of the filing timeframe 

outlined in this temporary final rule, the 

usual 180-day automatic extension 

period will be sufficient to prevent 

applicants filing Forms I–765 renewal 

applications from incurring a lapse in 

employment authorization and/or EAD 

validity, as USCIS expects to have 

returned to achieving its 3-month 

processing goal by then. 

This temporary final rule applies to 

three groups of applicants. First, the 

rule applies to those renewal applicants 

eligible for the automatic extension who 

already have filed their renewal Form I– 

765 application, which remains pending 

as of the date this rule goes into effect, 

May 4, 2022, and whose EAD has not 

expired or whose current up to 180-day 

auto-extension has not yet lapsed, since 

this group is at immediate or near term 

risk of experiencing a gap in 

employment authorization and/or 

documentation. Second, the rule applies 

to new renewal applicants who file 

Form I–765 during the 18-month period 

following the rule’s publication to avoid 

a future gap in employment 

authorization and/or documentation.132

Third, for those renewal applicants who 

already are experiencing a gap in 

employment authorization and/or EAD 

validity, fairness dictates that such 

renewal applicants also should receive 

the benefit of the increase in the 

automatic extension, to enable them to 

resume an additional period of 

employment authorization and/or EAD 

validity, since they were the first group 

to have been placed in a detrimental 

position on account of USCIS’ long 

processing times. For these applicants, 

this TFR provides that employment 

authorization and/or validity of their 

EADs will resume beginning on the date 

the rule is published in the Federal 

Register, May 4, 2022, and continue for 

a period of up to 540 days from the date 

their employment authorization and/or 

EAD expired, as shown on the face of 

the EAD. However, in recognition of 

Congress’ clear intent in the INA 

regarding unauthorized employment, 

including the accountability of 

employers that employ noncitizens who 

are not authorized to work in the United 

States,133 this TFR does not address 

periods of unauthorized employment.134

In other words, this rule does not cure 

any unauthorized employment that may 

have accrued prior to issuance of the 

rule.135

In addition, DHS has determined that 

the temporary amendment made by this 

rule should remain in the Code of 

Federal Regulations (CFR) for an 

amount of time sufficient to cover the 

approximately 18-month period during 

which the up to 540-day automatic 

extension will be authorized, plus an 

additional 720 days so that the 

regulatory provision remains in the CFR 

for the entire time that applicants may 

be relying on this temporary increase to 

the regular automatic extension 

period.136 As such, this TFR will take 

effect on May 4, 2022, and will be 

removed from the CFR on October 15, 

2025; that is, approximately 31⁄2 years 

(or 1,260 days) after the rule takes effect, 

although no new beneficiaries will 

receive a 540-day automatic extension 

after October 26, 2023. Further, as is 

consistent with current guidance, 

applicants should file a renewal Form I– 

765 no earlier than 180 days prior to the 

expiration date of their EAD. 


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Federal Register / Vol. 87, No. 86 / Wednesday, May 4, 2022 / Rules and Regulations 26631 

137The rule will be in effect for approximately 

31⁄2 years, after which paragraph (d)(5) will 

terminate automatically. As explained earlier in the 

preamble, this effective date period, while lengthy, 

is necessary so that those eligible who file a Form 

I–765 renewal application on the last available day 

of the 18-month period during which the increased 

automatic extension period is available and who 

qualify for an automatic extension will have the full 

benefit of the up to 540-day extension period. 

138For ease of reference, DHS sometimes refers to 

the approximate time period of 18 months. 

However, the precise number of days is 540. 

139 If a renewal applicant whose employment 

authorization and/or EAD validity has lapsed on or 

before the date this rule goes into effect, May 4, 

2022, and the lapse is 540 days or more, then such 

applicant will not receive any additional 

employment authorization and/or EAD validity 

under this rule. DHS anticipates that very few 

applicants will be in this situation. 

IV. Temporary Regulatory Change: 8 

CFR 274a.13(d)(5) 

DHS is amending 8 CFR 274a.13(d) to 

add a new paragraph (5) that will be in 

effect temporarily until October 15, 

2025.137 Under the new paragraph, DHS 

is increasing the automatic extension 

period for employment authorization 

and/or EAD validity of up to 180 days 

(described in 8 CFR 274a.13(d)(1)) to a 

period of up to 540 days for renewal 

applicants eligible to receive an 

automatic extension who have a timely 

filed Form I–765 renewal application 

pending during the 18-month 138 period 

beginning May 4, 2022, and ending 

October 26, 2023. After the 18-month 

period, automatic extensions of 

employment authorization and EAD 

validity will revert to the up to 180-day 

period for those eligible applicants who 

timely file renewal Form I–765 

applications after October 26, 2023. The 

increased automatic extension period 

will apply to eligible renewal applicants 

who timely file their Forms I–765 on or 

before the last day of the 18-month 

period, even if filed prior to May 4, 

2022. In addition, for renewal 

applicants whose Forms I–765 remain 

pending but who are no longer within 

the up to 180-day automatic extension 

period on or before May 4, 2022, DHS 

has determined that, in the interest of 

fairness, such renewal applicants 

automatically will resume employment 

authorization and/or the validity of their 

EADs beginning on the effective date of 

this TFR, May 4, 2022, and up to 540 

days from the expiration of their 

employment authorization and/or 

EAD.139

Similar to the 180-day automatic 

extension period provided by 8 CFR 

274a.13(d)(1), the increased automatic 

extension period of up to 540 days 

established by this TFR generally will 

automatically terminate the earlier of up 

to 540 days after the expiration date of 

the EAD, or upon issuance of 

notification of a denial on the Form I– 

765 renewal request even if this date is 

after October 26, 2023. 

Moreover, 8 CFR 274a.13(d)(5) will 

remain in the CFR for an additional 720 

days after this 540-day period, until 

October 15, 2025, to ensure that renewal 

applicants who are already within their 

up to 540-day automatic extension 

period as of October 26, 2023, will not 

get cut off from any remaining 

employment authorization and/or EAD 

validity that is over 180 days (the 

normal automatic extension period 

under 8 CFR 274a.13(d)(1) but instead 

will be able to take full advantage of the 

540-day period. 

Similar to 8 CFR 274a.13(d)(4), this 

TFR provides that an EAD that appears 

on its face to be expired is considered 

unexpired under this rule for up to 540 

days from the expiration date on the 

front of the EAD when combined with 

a Notice of Action (Form I–797C) 

indicating timely filing of the EAD 

renewal application and the same 

employment eligibility category as 

stated on the facially expired EAD (or in 

the case of an EAD and I–797C notice 

that each contains either an A12 or C19 

TPS category code, the category codes 

need not match). While the current 

provision at 8 CFR 274a.13(d)(4), and, 

likewise, the provision in this TFR, do 

not require that qualifying Notices of 

Action specify the automatic extension 

period, in practice, USCIS issues a Form 

I–797C Notice of Action to all renewal 

applicants with general information 

regarding who is eligible for an 

automatic extension and currently 

includes an explanation of the up to 

180-day automatic extension period. On 

and after May 4, 2022, USCIS plans to 

issue Form I–797C Notices of Action 

with an explanation of the up to 540- 

day automatic extension period. USCIS 

does not plan to issue updated Form I– 

797C notices to eligible applicants who 

filed their Form I–765 renewal 

application before May 4, 2022. 

However, even Form I–797C notices that 

refer to a 180-day automatic extension 

still meet the regulatory requirements. 


khammond on DSKJM1Z7X2PROD with RULES2ER04MY22.000</GPH>

Figure 1. TFR Process Map 

TFR 

effective date + 

540 days (TFR 

automatic 

extension 

eligibility 

period) + 720 days 

Renewal applicants 

filing up to 180 days 

expiration 

beforeEAD 

on the last 

+ 

date to qualify for 

the 540-day 

automatic extension 

-

-

1,260 days 

(total amount 

of time 

published in 

the CFR) 

540 days (TFR 

automatic extension 

eligibility period) 
26632 Federal Register / Vol. 87, No. 86 / Wednesday, May 4, 2022 / Rules and Regulations 

140See 8 CFR 274a.2(b)(1)(vii). See also https:// 

www.uscis.gov/i-9-central/form-i-9-resources/ 

handbook-for-employers-m-274/40-completingsection-2-of-form-i-9/44-automatic-extensions-ofemployment-authorization-documents-eads-incertain-circumstances (last updated Nov. 16, 2021). 

141 Id. 

142See 8 CFR 274a.2(c). 

143Therefore, for example, in situations where the 

underlying status that provides employment 

authorization would expire prior to 540 days, 

USCIS may include specific information on the 

applicant’s Form I–797C receipt notice as to how 

long the automatic extension of the individual’s 

EAD will last. More specifically, in the case of a 

TPS beneficiary who files a Form I–765 for a 

renewal EAD, such TPS beneficiary would not 

receive the full 540 days of EAD auto-extension 

where the relevant TPS country designation expires 

prior to that 540-day point. 

144HHS Control of Communicable Diseases; 

Foreign Quarantine, 85 FR 7874 (Feb. 12, 2020) 

(interim final rule to enable the CDC ‘‘to require 

airlines to collect, and provide to CDC, certain data 

regarding passengers and crew arriving from foreign 

countries for the purposes of health education, 

treatment, prophylaxis, or other appropriate public 

health interventions, including travel restrictions’’); 

Control of Communicable Diseases; Restrictions on 

African Rodents, Prairie Dogs, and Certain Other 

Animals, 68 FR 62353 (Nov. 4, 2003) (interim final 

rule to modify restrictions to ‘‘prevent the spread 

of monkeypox, a communicable disease, in the 

United States’’). 

145See, e.g., Visas: Documentation of 

Nonimmigrants Under the Immigration and 

Nationality Act, as Amended, 81 FR 5906, 5907 

(Feb. 4, 2016) (interim rule citing good cause to 

immediately require a passport and visa from 

certain H–2A Caribbean agricultural workers to 

avoid ‘‘an increase in applications for admission in 

bad faith by persons who would otherwise have 

been denied visas and are seeking to avoid the visa 

requirement and consular screening process during 

the period between the publication of a proposed 

and a final rule’’); Suspending the 30-Day and 

Annual Interview Requirements From the Special 

Registration Process for Certain Nonimmigrants, 68 

FR 67578, 67581 (Dec. 2, 2003) (interim rule 

claiming the good cause exception for suspending 

certain automatic registration requirements for 

nonimmigrants because ‘‘without [the] regulation 

approximately 82,532 aliens would be subject to 30- 

day or annual re-registration interviews’’ over a 6- 

month period). 

146See Util. Solid Waste Activities Grp. v. E.P.A., 

236 F.3d 749, 754–55 (D.C. Cir. 2001)(citations 

omitted) (the Attorney General’s Manual explains 

‘‘that a situation is ‘impracticable’ when an agency 

finds that due and timely execution of its functions 

would be impeded by the notice otherwise required 

in [§ 553], as when a safety investigation shows that 

a new safety rule must be put in place 

immediately.). 

147 Mid-Tex Electric Coop. v. FERC, 822 F.2d 

1123, 1132 (D.C. Cir. 1987). Examples where courts 

have found notice-and-comment rulemaking 

impracticable include: where air travel security 

Therefore, individuals who show Form 

I–797C notices that refer to a 180-day 

extension, along with their qualifying 

EADs, still receive the up to 540-day 

extension under this rule. USCIS will 

update the web page on the USCIS 

website that is referenced in the current 

Form I–797C notice to reflect the change 

in the automatic extension period. The 

public should refer to this web page 

when determining whether a Form I– 

797C Notice of Action, if presented with 

the expired EAD, is acceptable for Form 

I–9 or other purposes, such as to obtain 

benefits. Employers should attach a 

copy of the web page with the 

employee’s Form I–9 to document the 

extension of employment authorization 

and/or EAD validity. USCIS will also 

update I–9 Central on the USCIS 

website to provide employees and 

employers with specific guidance on 

Form I–9 completion, including any 

required notations indicating the abovedescribed extension of employment 

authorization and/or EAD validity, in 

such cases. If a benefit-granting agency 

accepts EADs, then the agency should 

accept the EADs that are automatically 

extended under this rule. The up to 540- 

day extension under this rule applies 

even if a Form I–797C notice refers to 

a 180-day extension. 

This rule does not modify the current 

requirements an employer must follow 

for Form I–9 at 8 CFR 274a.2(b)(1)(vii) 

that apply to automatic extensions, 

except that this rule temporarily 

replaces ‘‘180’’ with ‘‘540’’ in its 

reference to the maximum number of 

days for the automatic extension period. 

Therefore, when an employee chooses 

to use an EAD and Form I–797C receipt 

notice as provided under this rule to 

complete Form I–9 for new 

employment, the employee and 

employer should use the extended 

expiration date to complete Section 1 (if 

applicable) and Section 2 of the Form I– 

9 and reverify no later than the date that 

the automatic extension period 

expires.140 For current employment, the 

employer should update the previously 

completed Form I–9 to reflect the 

extended expiration date based on the 

automatic EAD extension while the 

renewal is pending and reverify no later 

than the date that the automatic 

extension expires.141 For renewal 

applicants with pending Forms I–765 

who experienced a lapse in employment 

authorization and/or EAD validity prior 

to the effective date of this rule, May 4, 

2022, yet resume a period of 

employment authorization and/or EAD 

validity under this rule, and are rehired 

by the same employer, their employers 

must complete Form I–9 by treating the 

individual’s employment authorization 

as having previously expired pursuant 

to 8 CFR 274a.2(c)(1)(ii) but have a 

choice of either reverifying employment 

authorization on the employee’s Form I– 

9 or completing a new Form I–9.142

Under this Temporary Final Rule, just 

as under existing 8 CFR 274a.13(d)(3), 

DHS will retain the ability to otherwise 

terminate any employment 

authorization or EAD, or extension 

period for such employment 

authorization or document, by written 

notice to the applicant, by notice to a 

class of noncitizens published in the 

Federal Register, or as provided by 

statute or regulation, including 8 CFR 

274a.14.143

V. Regulatory Requirements 

A. Administrative Procedure Act 

DHS is issuing this rule without prior 

notice and an opportunity to comment 

and with an immediate effective date 

pursuant to the Administrative 

Procedure Act’s (APA’s) ‘‘good cause’’ 

exception. 5 U.S.C. 553(b)(B) and (d)(3). 

Agencies may forgo notice-andcomment rulemaking and a delayed 

effective date when a rulemaking is 

published in the Federal Register, 

because the APA provides an exception 

from those requirements when an 

agency ‘‘for good cause finds . . . that 

notice and public procedure thereon are 

impracticable, unnecessary, or contrary 

to the public interest.’’ 5 U.S.C. 

553(b)(B); see also 5 U.S.C. 553(d)(3). 

Additionally, on multiple occasions, 

agencies have relied on this exception to 

promulgate both communicable diseaserelated 144 and immigration-related 145

interim rules. The good cause exception 

for forgoing notice-and-comment 

rulemaking ‘‘excuses notice and 

comment in emergency situations, or 

where delay could result in serious 

harm.’’ Jifry v. FAA, 370 F.3d 1174, 

1179 (D.C. Cir. 2004); Am. Fed. of Gov’t 

Emps. v. Block, 655 F.2d 1153, 1156 

(D.C. Cir. 1981) (‘‘As the legislative 

history of the APA makes clear, 

moreover, the exceptions at issue here 

are not ‘escape clauses’ that may be 

arbitrarily utilized at the agency’s whim. 

Rather, use of these exceptions by 

administrative agencies should be 

limited to emergency situations 

. . . .’’). Furthermore, notice and 

comment is impracticable under the 

APA, when an agency finds that due 

and timely execution of its functions 

would be impeded by the notice 

requirement under the APA, and for 

example, an investigation into the facts 

shows that a new rule must be put in 

place immediately to avert some type of 

emergency.146 Courts have held that 

impracticability ‘‘is inevitably fact- or 

context-dependent.’’ 147 Although the 


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agencies would be unable to address threats posing 

‘‘a possible imminent hazard to aircraft, persons, 

and property within the United States,’’ Jifry v. 

FAA, 370 F.3d 1174,1179 (D.C. Cir. 2004); if ‘‘a 

safety investigation shows that a new safety rule 

must be put in place immediately,’’ Util. Solid 

Waste Activities Grp. v. EPA, 236 F.3d, 749, 755 

(D.C. Cir. 2001)(ultimately finding that not to be the 

case and rejecting the agency’s argument); or if a 

rule was of ‘‘life-saving importance’’ to mine 

workers in the event of a mine explosion, Council 

of the S. Mountains, Inc. v. Donovan, 653 F.2d 573, 

581 (D.C. Cir. 1981) (describing that circumstance 

as ‘‘a special, possibly unique, case’’). This prong 

sets a high bar for the agency to meet. 

148See National Women, Infants, & Children 

Grocers Ass’n v. Food & Nutrition Service, 416 F. 

Supp. 2d 92, 108 (D.D.C. 2006) (‘‘[H]aving 

examined the totality of circumstances in which the 

interim rule was promulgated, the Court finds that 

the FNS’ invocation of the good cause exception is 

justified.’’). 

149As explained in the preamble, increasing 

staffing levels and the agency’s capacity are closely 

tied to the agency’s ability to recoup adjudicatory 

costs through a fee rule, overcoming the effects of 

the hiring freeze and pandemic related 

consequences, and backlog reduction efforts. 

However, none of the efforts undertaken by the 

agency are realized immediately as these processes 

are lengthy, time-consuming, and ongoing. 

150As explained in the preamble, certain 

applicants within the affected population, 

including those who are employment authorized 

incident to status or non-working adults and 

children, may not necessarily lose their 

employment authorization after the 180-day 

automatic extension period is exhausted, but their 

EADs become invalid so that they can no longer use 

them for other purposes, such as an identification 

document or as proof for receiving State or local 

public benefits to the extent eligible, in addition to 

not having proof of employment authorization for 

Form I–9 purposes. 

151See USCIS’ analysis outlined in the preamble 

at section IV.B, ‘‘Executive Order 12866 (Regulatory 

Planning and Review) and Executive Order 13563 

(Improving Regulation and Regulatory Review),’’ 

regarding the affected population. 

152Labor earnings includes wages and salaries as 

well as benefits (e.g., paid leave, supplemental pay, 

insurance). Amount shown as total present value at 

a 7 percent discount rate. 

good cause exception is ‘‘narrowly 

construed and only reluctantly 

countenanced,’’ Tenn. Gas Pipeline Co. 

v. FERC, 969 F.2d 1141 (D.C. Cir. 1992), 

DHS has invoked the exception 

appropriately in this case given the 

totality of the circumstances in which 

this TFR is implemented: 148 Providing 

advance notice and comment would be 

impracticable because doing so would 

result in serious harm, for the reasons 

set forth below. 

As discussed earlier in this preamble, 

the untenable situation that applicants 

and their employers are facing is the 

result of several converging factors 

affecting USCIS operations that were 

compounded by the COVID–19 national 

health emergency. USCIS faced an 

overall higher level of adjudicatory 

workload, coupled with insufficient 

resources to complete the work, which 

resulted in the significant increase in 

USCIS processing times for Form I–765 

applications (initials and renewals). 

Staffing shortfalls mean that the 

workforce cannot keep pace with these 

operational strains at present, and 

staffing issues cannot immediately be 

remedied.149 While the agency had 

hoped to overcome the effects of the 

factors adversely affecting processing 

times by using operational and other 

measures, these measures did not 

produce effects as fast as the agency had 

hoped, as some of the corrective 

measures are lengthy, time-consuming, 

and ongoing. Unfortunately, USCIS’ 

previous financial strains, including a 

preliminarily enjoined 2020 Fee Rule, 

continuing workforce shortfalls due to a 

previously threatened furlough, 

attrition, a hiring freeze, and an unusual 

spike and sustained increase in filings at 

a rate above that which USCIS can 

match continue to impact processing 

times for renewal Forms I–765. 

USCIS has been diligently taking 

steps, many of which had generally 

been effective in the past, to address 

these factors and improve adjudicative 

efficiency after the surge in EAD 

renewal applications in March and 

April of 2021, while, at the same time 

also attending to emergent and other 

critical demanding obligations of the 

agency. These steps included applying 

overtime funds to the Form I–765 

renewal workload in an attempt to 

control the growing backlog, and 

exploring programmatic improvement 

initiatives for the adjudication of Form 

I–765 applications overall. However, 

although these measures initially 

showed some success, it has become 

apparent that USCIS’ limited resources 

are insufficient to address the 

immediate situation. With the incoming 

volumes of Form I-765 renewal filings 

showing no sign of slowing, USCIS 

assesses that it will not be able to avert 

the impending crisis of more renewal 

applicants experiencing gaps in 

employment authorization and/or 

documentation, and that such gaps’ 

length in time are growing. As a result, 

USCIS has determined that until 

processing times can be reduced 

significantly, an increase in the 

automatic extension period is needed as 

soon as possible to avert imminent 

harm. This rule is imperative to provide 

an interim measure for thousands of 

renewal applicants who are facing 

imminent job loss through no fault of 

their own, and thousands who have 

already experienced a lapse in 

employment authorization and/or EAD 

validity despite USCIS’ best efforts to 

employ operational measures to avoid 

this result. 

As explained throughout this 

preamble, and as of December 31, 2021, 

the impact is significant. USCIS data 

show that approximately 66,000 

renewal applications remained 

unadjudicated beyond the automatic 

extension period of 180 days under 8 

CFR 274a.13(d)(1). Therefore, the 

individuals who filed those renewal 

applications and relied on the automatic 

extension to maintain employment 

already would have experienced job loss 

as a result of the lack of employment 

authorization and/or EAD validity. Of 

the approximately 66,000 renewal 

applicants in this situation, 58 percent 

are asylum applicants, a particularly 

vulnerable population. Continuous 

employment authorization during the 

pendency of an asylum application is 

vital for asylum seekers in the United 

States, given that they need employment 

authorization not just to work but also 

to access services and other resources 

required to pursue their asylum 

applications before USCIS or EOIR, 

which are often costly. Therefore, this 

entire group of renewal applicants 

needs immediate help via this 

rulemaking so these applicants can 

regain employment authorization and/or 

EAD validity and rejoin the workforce 

in order to continue to make a living to 

sustain their families. 

Given that renewal applications 

continue to be filed—USCIS receives 

about 55,000 new renewal Forms I–765 

in automatic extension-eligible 

categories per month—the backlog is 

expected to increase and, with it, the 

number of renewal applicants who 

could lose their ability to be employed 

and to support themselves and their 

families.150 DHS estimates that 

approximately 14,500 renewal 

applicants per month will join the group 

of approximately 66,000 renewal 

applications who faced a lapse in 

employment authorization and/or EAD 

validity as of December 2021.151

Furthermore, data estimates show that 

an estimated 266,841 to 375,545 

renewal applicants could lose their 

employment authorization and/or EAD 

validity over the next 18 months if this 

rule is not promulgated immediately. 

Considering the total population 

potentially impacted by this rule, DHS 

estimates that, with the implementation 

of this rule, approximately $3,098 

million in labor earnings for renewal 

applicants would be stabilized and not 

forgone.152 In other words, this rule will 

preserve an estimated total of $3,098.0 

million in labor earnings for the 

estimated 266,841 to 375,545 affected 

renewal applicants. Any delay in action 

such as by providing notice and 

comment, therefore, would raise the 

imminent threat and create severe 

adverse consequences to labor earnings 


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153See FN 124. 

154Turnover costs are calculated as a percent of 

annual salary. Amount shown as total present 

value, using a 7 percent discount rate. 

155As explained elsewhere in this preamble, 8 

CFR 274.13(d) was proposed in 2016 to mitigate the 

risk of gaps in employment authorization and 

required documentation, and its related 

consequences for eligible renewal applicants and 

their employers. See AC21 NPRM, 80 FR 81899, 

81927. In the AC21 NPRM, DHS explained that it 

believed the 180-day auto extension to be a 

reasonable and effective amount of time to mitigate 

that risk. See 80 FR at 81927 (‘‘DHS believes that 

this time period [of up to 180 days] is reasonable 

and provides more than ample time for USCIS to 

complete the adjudication process based on 

USCIS’s current 3-month average processing time 

for Applications for Employment Authorization.’’). 

After having received and carefully considered 

public comments, DHS published the final rule. 

Thus, the concept of the up to 180-day automatic 

extension has been tested in the public sphere 

already and gone through proper rulemaking. This 

TFR is merely a temporary 18-month deviation from 

the 180-day timeframe, warranted by this untenable 

situation. 

156While the effective date for a substantive rule 

under the APA is not less than 30 days, 5 U.S.C. 

553(d), this rule is a major rule subject to the 

Congressional Review Act, codified at 5 U.S.C. 801 

through 808. Under 5 U.S.C. 801, a major rule’s 

effective date generally is delayed for at least 60 

days. Under the APA and the Congressional Review 

Act, however, the agency is exempt from the 

delayed effective date requirements of both acts if 

the agency provides good cause. See 5 U.S.C. 553(d) 

and 808(2). 

157As of March 1, 2003, the former INS ceased 

to exist as an agency within the United States 

Department of Justice, and its functions respecting 

applications for immigration benefits (such as the 

adjudication of requests for employment 

authorization and/or EADs) were transferred to 

United States Citizenship and Immigration Services 

in the United States Department of Homeland 

Security. See Homeland Security Act of 2002, 

Public Law 107–296, sec. 471(a), (Nov. 25, 2002); 

68 FR10922 (Mar. 6, 2003). Additionally, under the 

Homeland Security Act sec. 101(b)(1)(F), 6 U.S.C. 

111(b)(1)(F), USCIS, as a DHS component, should 

exercise this function in a manner that ensures that 

the overall economic security of the United States 

is not diminished by efforts, activities, and 

programs aimed at securing the homeland. 

158Courts have been more inclined to finding 

good cause for issuance of TFRs if the effect is 

limited in scope and duration. See, e.g., San Diego 

Navy Broadway Complex Coalition v. U.S. Coast 

Guard, 2011 WL 1212888, *6 (S.D. Cal. 2011) 

(finding good cause for issuance of a TFR because 

agency limited its effect for several months and also 

explicitly indicated its intent to initiate notice-andcomment rulemaking); Nat’l Fed’n Emps v. Divine, 

671 F.2d 607 (D.C. Cir. 1982) (finding that OPM’s 

and the financial well-being of 

applicants and their families. DHS 

believes that with the immediate 

implementation of this rulemaking, the 

potential for additional gaps in 

employment authorization and/or EAD 

validity, job loss, and financial 

uncertainty will be reduced 

significantly for Form I–765 renewal 

applicants and their families while 

USCIS works toward implementing its 

backlog reduction plan to return 

processing times to the pre-emergency 

3-month average. 

DHS believes that the imminent and 

continuing impact on employers’ 

business continuity and related effects 

caused by gaps in employment 

authorization and/or EAD validity 

additionally justify that DHS issue this 

temporary final rule. The imminent or 

ongoing gaps in employment 

authorization and/or EAD validity being 

experienced by renewal applicants 

through no fault of their own adversely 

affect not only applicants and their 

families, but also employers, which 

experienced difficulties in maintaining 

their workforce as a result of the 

pandemic, and continue to face a variety 

of challenges as the United States 

progresses on its path to recovery from 

the pandemic, such as more job 

openings than available workers.153 To 

ensure continuity of operations, 

businesses and entities may have made 

decisions in reliance on the possibility 

that eligible renewal Form I–765 

applicants may receive renewals of 

employment authorization and 

documentation (for example, by 

establishing business contracts, 

applying for grants, signing leases, and 

commencing development of product 

lines). As DHS predicts that it will take 

approximately 18 months to return to 

normal processing levels, DHS seeks to 

mitigate the potential that additional 

businesses and entities may temporarily 

be adversely impacted by required 

terminations as a result of gaps in 

employment authorization or 

documentation. 

Such adverse impacts on employers 

and businesses, who have already 

experienced significant economic harm 

on account of the pandemic, gives cause 

to address an emergency situation as 

quickly as possible to prevent further 

imminent harm to an increased number 

of renewal applicants and their 

employers. While the number of 

businesses affected is unknown, DHS’s 

analysis suggests that, if this rule were 

not implemented immediately, 

businesses that employ affected EAD 

holders would incur approximately 

$4,037.6 million in labor turnover costs 

for the separation and replacement these 

employees.154 This amount represents 

significant cost savings to businesses 

under this rule. The longer this rule is 

delayed, the greater the costs to business 

because of applicants’ gaps in 

employment authorization and/or 

documentation and the resulting 

disruptions in business continuity that 

employers will experience, defeating the 

very purpose 8 CFR 274a.13(d) and this 

rulemaking, creating 8 CFR 

274a.13(d)(5), seek to prevent.155 That 

is, because of the serious harm that 

would be caused to applicants and 

employers described throughout this 

rulemaking, providing notice and 

comment, as well as a 60-day effective 

date delay,156 would expose the public 

to the harm that 8 CFR 274a.13(d) and 

this rulemaking are trying to prevent, 

and would thereby defeat the very 

purpose of rulemaking. 

Furthermore, DHS believes that given 

the imminent and continuing impact of 

gaps in employment authorization and/ 

or EAD validity on renewal applicants, 

their families, employers, and 

employers’ business continuity make 

following ordinary notice and timing 

impracticable. As a DHS component 

agency, one of USCIS’ primary missions 

is to administer immigration benefits, 

including adjudicating requests for and 

issuing employment authorization and/ 

or EADs.157 Under the INA, the 

Secretary is authorized to take necessary 

regulatory action to carry out this 

mission effectively. As established 

above, the current situation is untenable 

for renewal applicants and their 

employers. Given the current processing 

backlogs and delays, USCIS also 

predicts that it will take approximately 

18 months to revert to normal 

processing timeframes, a significant 

portion of which would be taken up by 

notice and comment rulemaking and the 

60-day publication requirement. Thus, 

given the immediate harm that these 

backlogs create for renewal applicants 

and employers alike, the notice and 

comment requirement, and associated 

time requirements, would not allow 

USCIS to timely avert the harms 

discussed in this rule. Providing notice 

and comment rulemaking and 

complying with the 60-day publication 

requirement is therefore simply 

impracticable as it would impede USCIS 

functions, and has a significant impact 

on applicants and employers. 

Additionally, DHS believes that 

issuing this temporary rule is a 

reasonable approach to implement this 

temporary measure, which will be 

effective for only a finite period. 

Specifically, the up to 360-day increase 

of the current 180-day automatic 

extension period via the amendments to 

DHS regulations made by this rule are 

limited to individuals who are seeking 

a Form I–765 renewal application 

within the next 18 months from the 

rule’s publication, while the 

amendments to DHS regulations will 

only remain in place for a total of 1,260 

days (i.e., 31⁄2 years). These time periods 

are suitable to avert imminent harm to 

a specific class of individuals and their 

employers.158 As demonstrated in the 


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emergency action was within the scope of the ‘‘good 

cause’’ exception as the agency’s action of 

postponing the open benefits season was required 

by events and circumstances beyond its control and 

necessary because not delaying would have been 

not only impracticable but also potentially 

harmful); Council of Southern Mountains, Inc. v. 

Donovan, 653 F.2d 573 (D.C. Cir. 1981) (upholding 

Mine Safety and Health Administration rule 

delaying the effective date without notice and 

comment). 

159 DHS believes that 720 days is the amount of 

time needed to cover the up to 540-day automatic 

extension and to account for the fact that renewal 

applicants may file their EAD renewal application 

up to 180 days before their EAD expires. 

160These measures include staffing increases and 

reallocations to focus on Form I–765, backlog 

reduction initiatives that apply technology in 

strategic ways to more efficiently adjudicate Forms 

I–765, new monthly completion goals, and policy 

changes to improve efficiency for the agency and 

eliminate unnecessary hurdles for applicants. In 

addition, USCIS is focused on addressing prolonged 

processing times in other areas impacting Form I– 

765 overall processing times also, for example, in 

cases where a Form I–765 filing is based on an 

underlying benefit request, such as an application 

for asylum or to adjust to lawful permanent resident 

status. 

161See USCIS’ analysis outlined in the preamble 

at section IV.B, ‘‘Executive Order 12866 (Regulatory 

Planning and Review) and Executive Order 13563 

(Improving Regulation and Regulatory Review).’’ 

preamble, extending the automatic 

extension provision temporarily by up 

to an additional 360 days for a period 

of 540 days (i.e., approximately 18 

months) directly corresponds to USCIS’ 

data-driven estimates on how long 

USCIS will need to reduce the 

processing times of backlogged Form I– 

765 renewal applications. In addition, 

DHS has determined that the rule will 

need to remain in the Code of Federal 

Regulations for another 720 days so that 

eligible prior renewal applicants can 

take advantage of the full up to 360-day 

increase if necessary, even after the 18- 

month window for the increase 

closes.159 After this period, the 

amendments made by this rule will 

expire automatically. Therefore, this 

rulemaking is limited in time and scope 

in order to prevent harm to the public. 

Bypassing the ordinary APA 

procedures will allow USCIS 

immediately to reduce the dire impact 

the current circumstances create for 

affected noncitizens and their 

employers—circumstances that were 

and continue to be beyond the control 

of renewal applicants and their U.S. 

employers. As described above and 

throughout this preamble, while USCIS 

has been taking active measures to 

reduce the backlog and return to its 

processing goal of an average of 3 

months as soon as possible,160 backlogs 

and processing times grew to such an 

extent due to the COVID–19 pandemic’s 

impacts on agency operations and 

finances, in combination with other 

factors such as filing surges, staffing 

shortages, and a sustained increase in 

the number of filings in other benefit 

request types such as adjustment of 

status and asylum that impact EAD 

receipts, that those measures were 

insufficient to avoid the current 

circumstances. 

USCIS expects that its backlog 

reduction efforts will allow the agency 

to return to its 90-day processing goal 

before this TFR expires. In the 

meantime, this TFR will mitigate harm 

to individuals, families, and businesses 

while USCIS works to rebound from the 

adverse impacts of COVID–19, staffing 

shortages, and financial strains. A 

subsequent, extraordinary surge and 

sustained increase in Form I–765 

submissions further undermined those 

efforts such that the only practicable 

solution to avoid placing thousands of 

renewal applicants in the untenable 

situation of losing employment 

authorization and/or EAD validity and 

experiencing employment termination 

is this time-limited and narrowly drawn 

rule. Data show that if this rule is 

implemented without notice and 

comment, DHS will have mitigated gaps 

in employment authorizations for 

virtually all the affected population.161

This temporary measure is consistent 

with the intent of current 8 CFR 

274a.13(d). In this rule, DHS is simply 

temporarily increasing the 180-day 

timeframe for those already eligible for 

an automatic extension. DHS neither 

makes additional categories eligible nor 

alters existing procedures through this 

TFR. Therefore, the increase in the 

automatic extension of employment 

authorization and/or EAD is not just 

highly effective but also limited in 

scope and application. For this 

additional reason, DHS believes that the 

good cause exception is properly 

invoked in this rulemaking. 

In sum, for the reasons stated, 

including the need to be responsive to 

the operational demands and challenges 

facing USCIS to reduce its processing 

times, renewal applicants’ needs to 

avoid gaps in employment and/or 

documentation, and employers’ need to 

maintain their workforce, DHS believes 

that, based on the totality of the 

circumstances in which this TFR is 

issued, it has good cause to bypass 

ordinary notice-and-comment procedure 

for this temporary action, and that 

moving expeditiously to make this 

change effective immediately upon 

publication is in the best interest of the 

public. 

DHS has concluded that the good 

cause exceptions in 5 U.S.C. 553(b)(B) 

and (d)(3) apply to this TFR. Delaying 

implementation of this rule until the 

conclusion of notice-and-comment 

procedures of section 553(b) and the 

delayed effective date provided by 

section 553(d)(3) would be 

impracticable due to the need to prevent 

renewal applicants, otherwise eligible 

for the up to 180-day automatic 

extension, from experiencing the 

immediate harm caused by gaps in 

employment authorization and/or 

documentation, which would in turn 

cause imminent harm to their U.S. 

employers and their ability to maintain 

their workforce, while USCIS works to 

reduce adjudicatory processing times 

and otherwise address the Form I–765 

backlogs through various measures. 

B. Executive Order 12866 (Regulatory 

Planning and Review) and Executive 

Order 13563 (Improving Regulation and 

Regulatory Review) 

Executive Order (E.O.) 12866 and E.O. 

13563 direct agencies to assess the costs 

and benefits of available regulatory 

alternatives and to the extent permitted 

by law, to proceed if the benefits justify 

the costs. They also direct agencies to 

select regulatory approaches that 

maximize net benefits (including 

potential economic, environmental, 

public health and safety effects, 

distributive impacts, and equity). In 

particular, E.O. 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. The Office of Information 

and Regulatory Affairs (OIRA), within 

the Office of Management and Budget 

(OMB), has designated this final rule a 

significant regulatory action that is 

economically significant under section 

3(f)(1) of E.O. 12866. Accordingly, OIRA 

has reviewed this regulation. 

1. Introduction 

As fully detailed in the preamble, this 

TFR temporarily amends existing DHS 

regulations to provide that the 

automatic extension period applicable 

to expiring employment authorization 

and/or Employment Authorization 

Documents (Forms I–766 or ‘‘EADs’’) for 

certain renewal applicants who have 

filed Form I–765, Application for 

Employment Authorization, will be 

increased from up to 180 days to up to 

540 days for a period of 540 days (i.e., 

approximately 18 months). For those 

renewal applicants whose 180-day 

automatic extension of employment 

authorization and/or EADs (hereinafter 

may be referred to collectively as 

‘‘EADs’’ for ease of reference) have 

expired by the date this rule goes into 

effect, this rule provides for an 

additional period of employment 


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162The near-term captures the dates of January 1, 

2022, to mid-April, 2022, when the TFR is expected 

to take effect. 

authorization and EAD validity, 

beginning on the date the rule goes into 

effect and up to 540 days from the date 

their EADs expired as shown on the face 

of the card. The purpose of this TFR is 

to reduce the likelihood that certain 

eligible applicants who qualify for 

automatic extensions of their expiring 

EADs will experience gaps in 

employment authorization and/or EAD 

validity, and therefore allow earnings 

stability for individuals and continuity 

of business operations for their 

employers. 

DHS determines that the population 

impacted by this TFR consists of three 

components applicable to the pool of 

applicants who have renewal Form I– 

765 applications pending. The first 

component consists of the pool whose 

EADs and 180-day auto-extensions have 

lapsed, and renewal Form I–765 

applications still have not been 

approved as of December 31, 2021—we 

refer to this group as the ‘‘current’’ 

population segment. The second 

component consists of the pool for 

whom coverage by the current 180-day 

auto-extension has prevented the lapse 

of their EADs to date but who would 

experience a lapse due to expiration of 

their 180-day auto-extensions in the 

120-day period between the date of the 

analysis and the TFR taking effect.162

This second group is referred to as 

‘‘near-term,’’ in context. The third group 

consists of the ‘‘future’’ population that, 

without this rule, could experience a 

lapse in employment during the 18- 

month period in which the TFR is 

effective. Because we cannot forecast 

the future population with precision, we 

present a range. The baseline population 

comprising the current, near-term, and 

future components could range from 

301,463 to 423,863. After applying 

several adjustments described in the 

‘‘Background and Population’’ section, 

we arrive at an adjusted population that 

could range from 266,841 to 375,545. 

Our analysis suggests that virtually all 

eligible applicants with pending Form 

I–765 renewal applications who are 

otherwise eligible for the automatic 

extension would be covered by the TFR, 

though we cannot rule out the 

possibility that some automatically 

extended EADs might still lapse, as our 

analysis reveals that over recent months 

a miniscule share had lapsed for more 

than 540 days. We expect that the 

monetized estimates will be beneficial 

to individuals, and that they will also 

generate beneficial cost-savings to 

businesses. 

DHS has prepared quantified 

estimates of the impacts that could be 

generated by this TFR applicable to the 

adjusted population. This rule will 

prevent EAD holders from incurring a 

loss of earnings (‘‘stabilized earnings’’), 

as under this rule there will be no 

disruption to their earnings due to a 

lapsed EAD. Additionally, this rule will 

generate labor turnover cost savings to 

businesses that employ the EAD 

holders, as under this rule there will be 

no disruption to EAD holders’ 

employment authorization. However, 

we are unable to ascertain how many 

individual businesses could be 

impacted. Additionally, to the extent 

this rule prevents affected EAD holders’ 

jobs from going unfilled, there will be 

less impacts to tax transfers from 

businesses and employees to the Federal 

Government. 

Due to substantial variation in the 

inputs utilized to estimate the impacts, 

there is a very wide range in which they 

could fluctuate. These impacts are 

summarized in Table 7, where the 

monetized figures represent the forecast 

expected value (which is the mean of 

trial-based simulations) discounted at 7 

percent rate of discount for a range 

based on simulations that account for 

variations in the components of the 

impacts. The figures represent the total 

cost over two years. 

TABLE 7—SUMMARY OF IMPACTS

[FY 2020 Values] 

Module A. 

EAD Holder Earnings Preserved (‘‘Stabilized Earnings’’): 

• Entities directly affected: Individual EAD holders. 

• Population: 266,841 to 375,545 individuals with EAD renewals. 

• Monetized present value estimate (7 percent): $3,098.0 million. 

• Type: Stabilized labor income to affected EAD renewal applications; this labor income is a proxy for either prevented transfers from EAD holders to others in the 

workforce or cost savings to employers for preserved productivity, depending on if employers would have been able to easily find replacement labor for affected 

EAD holders without this rule. 

• Summary: Individuals would benefit from being able to maintain their employment without disruption; DHS estimated these savings based on data from recently 

lapsed EADs and labor earnings, both of which vary within a range. 

• Potential preserved employment taxes = $326.9 million (Present Value, 7 percent discount rate); actual amount will depend on how easily businesses would have 

been able to find replacement labor for affected EAD holders without this rule. 

Module B. 

Employer Labor Turnover Cost Savings: 

• Entities directly affected: businesses that employ the EAD holders. 

• Population: Unknown number of businesses; impacts based on 265,987 to 374,343 individuals with EAD renewals. 

• Monetized present value estimate (7 percent): $4,037.6 million. 

• Type: Cost-savings. 

• Summary: There would be cost savings to employers in terms of continuity of business operations due to the worker not being separated; DHS estimated 

these savings based on information applicable to turnover costs relevant to the annual earnings, both of which vary within a range. 

Module C. 

Other Impacts Considered: 

• Individuals impacted would likely benefit from cost-savings accruing to not having to incur the direct costs associated with searching for and obtaining a new 

job once their renewal EAD that lapsed is eventually approved. 

• The estimates of stabilized earnings understate the true impact because they do not factor in the time it would take affected EAD holders to find employment 

beyond when the lapsed EAD is finally renewed. 

• To the extent that individuals’ earnings will be maintained, burdens to their support network would be prevented. 

• DHS does not expect labor market impacts from this TFR, as the total maximum population that could be impacted is a very small share of the national labor 

force. 

• Avoid opportunity costs to businesses for having to choose the next best alternative to employment of the affected EAD renewal applicant. We do not know if 

the replacement hire in a next best alternative scenario would have been a comparable substitute (i.e., a productivity or profit charge to employers). 


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Federal Register / Vol. 87, No. 86 / Wednesday, May 4, 2022 / Rules and Regulations 26637 

163Bureau of Labor Statistics data show that as of 

December 2021, there were 0.6 unemployed persons 

per job opening. U.S. Department of Labor, U.S. 

Bureau of Labor Statistics, Number of Unemployed 

Persons per Job Opening, Seasonally Adjusted (Jan. 

2007 through Jan. 2022), https://www.bls.gov/ 

charts/job-openings-and-labor-turnover/unemp-perjob-opening.htm (last visited Mar. 14, 2022). 

Some of the impacts of this rule will 

depend on whether businesses would 

have been able to find replacement labor 

for the positions the affected EAD 

renewal applicants would have lost if 

they had experienced a gap in 

employment without this rule. If 

businesses would have been able to find 

replacement labor from the pool of the 

unemployed, the only monetized cost 

savings of the rule to society is for 

preventing costs resulting from labor 

turnover. If businesses would not have 

been able to find replacement labor, the 

monetized cost savings of the rule 

would also include prevented lost 

productivity due to a lack of available 

labor. However, the impacts of this rule 

to the affected EAD renewal applicants 

do not depend on whether their 

employer can find replacement labor. 

This rule will prevent affected EAD 

renewal applicants from incurring a loss 

of earnings. 

DHS estimates that stabilized earnings 

to EAD renewal applicants ranges from 

$81.3 million to $6,388.6 million with a 

primary estimate of $1,713.5 million 

(annualized, 7 percent), depending on 

the wages the EAD renewal applicants 

earn, the number of EAD renewal 

applicants affected, and the duration of 

the gap in employment authorization 

that would occur without this rule. DHS 

uses estimates of the stabilized earnings 

as a measure of either 1) prevented 

transfers of these wages from the 

affected population to others in the 

labor market, or 2) a proxy for 

businesses’ cost savings from prevented 

lost productivity, depending on whether 

businesses would have been able to find 

replacement labor for affected EAD 

renewal applicants without this rule. 

DHS does not know what the next 

best labor alternative would have been 

for businesses without this rule. 

Accordingly, DHS does not know the 

portion of the overall effects of this rule 

that are transfers or costs savings. To 

begin, DHS describes the two extreme 

scenarios, which provide the bounds for 

the range of effects. 

Scenario 1: If, in the absence of this 

rule, all businesses would have been 

able to easily find reasonable labor 

substitutes for the positions the EAD 

renewal applicants would have lost, 

businesses would have lost little or no 

productivity. Accordingly, this rule 

prevents $1,713.5 million (primary 

estimate annualized, 7 percent) from 

being transferred from affected EAD 

renewal applicants to workers currently 

in the labor force (whom are not 

presently employed full time) or 

induced back into the labor force and 

this rule would result in $0 cost savings 

to businesses for prevented productivity 

losses. 

Scenario 2: Conversely, if all 

businesses would have been unable to 

immediately find reasonable labor 

substitutes for the position the EAD 

holder filled, then businesses would 

have lost productivity. Accordingly, 

$1,713.5 million is the estimated 

monetized cost savings from this rule 

for prevented productivity losses and 

this rule will result in preventing $0 

from being transferred from affected 

EAD renewal applicants to replacement 

labor. Because under this scenario 

businesses would not have been able to 

find replacement labor, the rule may 

also result in additional cost savings to 

employers for prevented profit losses; 

and further, may also prevent a 

reduction in tax transfer payments from 

businesses and employees to the 

government. DHS has not estimated all 

potential tax effects but notes that 

stabilized earnings of $1,713.5 million 

would have resulted in employment tax 

losses to the Federal Government (i.e., 

Medicare and Social Security) of $180.8 

million (annualized, 7 percent). 

In both scenarios, whether without 

this rule employers would have been 

able to find replacement labor or not, 

DHS assumes that businesses would 

have incurred labor turnover costs for 

having to replace affected EAD renewal 

applicants. Accordingly, DHS estimates 

the rule will also result in additional 

labor turnover cost savings to businesses 

ranging from $232.2 million to $6,666.8 

million, with a primary estimate of 

$2,233.1 million (annualized, 7 percent) 

depending on the wages the EAD 

renewal applicants earn, the number of 

EAD renewal applicants affected, and 

the replacement cost to employers. 

Table 8 below summarizes these two 

scenarios and the primary estimate of 

this rule (Tables 8A and 8B capture the 

impacts at 3 and 7 percent rates of 

discount, respectively). Because DHS 

does not know the overall proportion of 

businesses that would have been able to 

easily find replacement labor in the 

absence of this rule, for DHS’s primary 

estimate we assume that replacement 

labor would have been found for half of 

all EAD renewal applicants and not 

found for the other half (i.e., an average 

of the two extreme scenarios described 

above). However, as noted previously, 

December 2021 unemployment and job 

openings data indicate there are more 

jobs available than people looking for 

jobs.163 Accordingly, we believe the 

impacts of this rule will most likely 

skew towards Scenario 2, with the rule 

resulting in mostly cost savings for 

employers who would have been unable 

to fill the jobs of affected EAD renewal 

applicants without this rule. 

TABLE 8A—PRIMARY ESTIMATE—MONETIZED ANNUALIZED IMPACTS AT 3% 

[Millions] 

Category Description 

Scenario 1: 

Replacement 

labor found for 

ALL affected 

EAD holders 

Scenario 2: No 

replacement 

labor found for 

affected EAD 

holders 

Primary 

estimate: 

Replacement 

labor found for 

HALF of affected EAD 

holders 

Transfers 

Stabilized Earnings .............................. Prevented compensation transfers from EAD renewal applicants to other workers.$1,693.0 $0 $846.5 

Employment Taxes .............................. Prevented reduction in employment taxes paid to 

the Federal Government.

0 178.6 89.3 


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26638 Federal Register / Vol. 87, No. 86 / Wednesday, May 4, 2022 / Rules and Regulations 

164Boardman et al., Cost-Benefit Analysis 

Concepts and Practice (2018), p.152 

165For regulatory analysis purposes, DHS 

generally assumes the value of time for unemployed 

individuals is at least the value of the Federal 

minimum wage. 

TABLE 8A—PRIMARY ESTIMATE—MONETIZED ANNUALIZED IMPACTS AT 3%—Continued 

[Millions] 

Category Description 

Scenario 1: 

Replacement 

labor found for 

ALL affected 

EAD holders 

Scenario 2: No 

replacement 

labor found for 

affected EAD 

holders 

Primary 

estimate: 

Replacement 

labor found for 

HALF of affected EAD 

holders 

Cost Savings 

Labor Turnover ..................................... Prevented labor turnover costs to businesses ......... 2,206.5 2,206.5 2,206.5

Productivity ........................................... Prevented lost productivity to businesses (stabilized 

earnings used as a proxy).

0 1,693.0 846.5 

Total Cost Savings ........................ ................................................................................... 2,206.5 3,899.5 3,053.0 

TABLE 8B—PRIMARY ESTIMATE—MONETIZED ANNUALIZED IMPACTS AT 7% 

[Millions] 

Category Description 

Scenario 1: 

Replacement 

labor found for 

ALL affected 

EAD holders 

Scenario 2: No 

replacement 

labor found for 

affected EAD 

holders 

Primary 

estimate: 

Replacement 

labor found for 

HALF of affected EAD 

holders 

Transfers 

Stabilized Earnings .............................. Prevented compensation transfers from EAD renewal applicants to other workers.$1,713.5 $0 $856.7 

Employment Taxes .............................. Prevented reduction in employment taxes paid to 

the Federal Government.

0 180.8 90.4 

Cost Savings 

Labor Turnover ..................................... Prevented labor turnover costs to businesses ......... 2,233.1 2,233.1 2,233.1

Productivity ........................................... Prevented lost productivity to businesses (stabilized 

earnings used as a proxy).

0 1,713.5 856.7 

Total Cost Savings ........................ ................................................................................... 2,233.1 3,946.6 3,089.9 

There are two important caveats to the 

monetized estimates. First, as the 

pending caseload evolves over the 

course of time that this TFR applies to, 

the pending count and therefore the 

total number of EADs and individuals 

associated with them will change. A 

resultant effect of the caseload changes 

is that as USCIS works through this 

backlog, the number of affected EAD 

renewal applicants and the durations for 

which EAD renewal applicants may 

have experienced a lapse in 

employment without this rule will 

likely vary from the durations modeled, 

which was those experienced in 

December 2021. As a result, DHS 

acknowledges the uncertainty in the 

above monetized impacts. 

Second, DHS recognizes that nonwork time performed in the absence of 

employment authorization has a 

positive value, which is not accounted 

for in the above monetized estimates.164

For example, if someone performs 

childcare, housework, home 

improvement, or other productive or 

non-work activities that do not require 

employment authorization, that time 

still has value. In assessing the burden 

of regulations to unemployed 

populations, DHS routinely assumes the 

time of unemployed individuals has 

some value.165 The monetized estimates 

of the wages this rule preserves are 

measured relative to a baseline in which 

individuals lose EADs and the 

associated income as a result of the 

problem this rule seeks to address. The 

monetary value of the wages this rule 

preserves are savings to the individual, 

but DHS has considered whether net 

societal savings may be lower than the 

sum of the preserved wages to the 

individuals and whether a more 

accurate estimate of the net impact to 

society from losing employment 

authorization in the absence of this rule 

might take into account the value of 

individuals’ non-work time, even 

though this population has lost their 

authorization to sell their time as labor. 

Due to the variety of values placed on 

non-work time, and the additional fact 

that this non-work time is involuntary, 

it is difficult to estimate the appropriate 

adjustment that DHS should make to 

preserved wages in order to account for 

the social value of non-work time. 

Accordingly, DHS recognizes that the 

net societal savings of this rule may be 

somewhat lower than those reported 

below, but they are a reasonable 

estimate of the impacts to avoiding the 

costs of lapsed EADs. 


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Federal Register / Vol. 87, No. 86 / Wednesday, May 4, 2022 / Rules and Regulations 26639 

Pursuant to OMB Circular A–4, DHS 

has prepared an A–4 Accounting 

Statement for this rule. 

TABLE 9—OMB A–4 ACCOUNTING STATEMENT

[$ millions, 2020] 

[Period of analysis: 2022–2023] 

Category Primary estimate Minimum 

estimate 

Maximum 

estimate 

Source citation 

(RIA, preamble, 

etc.) 

Benefits: 

Monetized Benefits ................................................................................... 7% 

3% 

N/A 

N/A 

N/A 

N/A 

N/A 

N/A 

RIA. 

Annualized quantified, but un-monetized, benefits .................................. N/A N/A N/A RIA. 

Unquantified Benefits ............................................................................... Without this rule, affected EAD renewal applicants who remain 

eligible for employment authorization would encounter delays in 

EAD renewals and be unauthorized to work for periods of time. 

This rule will ensure that these EAD renewal applicants do not 

experience gaps in employment authorization as a result of USCIS 

processing delays and can continue to make a living to sustain 

their families. Accordingly, stabilized earnings for these EAD 

renewal applicants may also prevent any monetary or other 

support that would have been necessary from the support network 

of affected EAD holders during such a period of unemployment. It 

will also ensure other benefits of holding an EAD or job will 

continue, such as valid identity documents, or health insurance 

obtained through an employer. Additionally, this rule will prevent 

adverse impacts on businesses that would result from required 

terminations for affected EAD renewal applicants. 

RIA. 

Costs: 

Annualized monetized costs .................................................................... 7% 

3% 

¥$3,089.9 

¥3,053.0 

¥$232.2 

¥229.4 

¥$13,055.4 

¥13,131.0 

RIA. 

Annualized quantified, but un-monetized, costs ...................................... N/A N/A N/A RIA. 

Qualitative (unquantified) costs ................................................................ In cases where, in the absence of this rule, companies cannot find 

reasonable substitutes for the labor the affected EAD renewal 

applicants have provided, affected businesses would also save 

profits from the productivity that would have been lost. In all cases, 

companies would avoid opportunity costs from having to choose 

the next best alternative to employment of the affected EAD 

renewal applicant. 

RIA. 

Transfers: 

Annualized monetized transfers: ‘‘on budget’’ ......................................... 7% 

3% 

0 

0 

0 

0 

0 

0 

RIA. 

From whom to whom? ............................................................................. N/A N/A 

Annualized monetized transfers: stabilized earnings .............................. 7% 

3% 

856.7 

846.5 

0 

0 

6,388.6 

6,312.4 

RIA. 

From whom to whom? ............................................................................. This rule will prevent compensation from transferring from affected 

EAD renewal applicants to other workers. 

RIA. 

Annualized monetized transfers: taxes .................................................... 7% 

3% 

90.4 

89.3 

0 

0 

674.1 

666.1 

RIA. 

From whom to whom? ............................................................................. This rule will prevent a reduction in employment taxes from 

companies and employees to the Federal Government (quantified). 

It would also prevent the transfer of additional Federal, State, and 

local income tax revenue (unquantified). 

RIA. 

Category Effects Source citation 

(RIA, preamble, 

etc.) 

Effects on State, local, and/or tribal governments .......................................... This rule will prevent a reduction in State and local tax revenue 

(unquantified). It will also prevent potential reliance on State or 

local government-funded support services that may have been 

necessary with a gap in employment authorization (unquantified). 

RIA. 

Effects on small businesses ............................................................................ This rule does not directly regulate small entities but has indirect 

cost-saving to small entities that may employ affected EAD 

renewal applicants. Such businesses will avoid the costs for labor 

turnover and loss of productivity and profits had they not been able 

to immediately fill the labor performed by the affected EAD 

renewal applicant. 

RIA, RFA. 


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26640 Federal Register / Vol. 87, No. 86 / Wednesday, May 4, 2022 / Rules and Regulations 

TABLE 9—OMB A–4 ACCOUNTING STATEMENT—Continued 

[$ millions, 2020] 

[Period of analysis: 2022–2023] 

Category 

Effects on wages ............................................................................................. Preserve access to wages for EAD renewal applicants. RIA. 

Effects on growth ............................................................................................ None. RIA. 

2. Background and Population 

Backlogs across USCIS-administered 

benefit requests, including employment 

authorization, have been increasing 

steadily since FY 2010, due to factors 

discussed in the preamble. Unforeseen 

obstacles driven by the COVID–19 

pandemic that exacerbated existing 

financial problems within USCIS, 

staffing issues, and a surge in FY 2021 

EAD filings, have aggravated the 

situation and caused a recent spike in 

USCIS processing times. This is 

especially concerning where the backlog 

involves employment authorization and 

documentation, which is critical to 

applicants’ livelihoods and the financial 

well-being of their families, as well as 

U.S. employers’ continuity of 

operations. USCIS understands the 

potential impact that delays in receiving 

final decisions have on applicants and 

tackling the backlog and reducing 

processing times is a priority for DHS. 

Currently, applicants in specific 

categories who are seeking to renew 

their expiring EADs are eligible for an 

automatic extension of that employment 

authorization and/or EAD for up to 180 

days if they meet certain requirements. 

Because of the recent spike in 

processing times, however, DHS has 

determined that 180 days is no longer 

sufficient to prevent gaps in 

employment authorization and 

documentation for most eligible 

applicants. Therefore, DHS will provide 

an additional 360 days of employment 

authorization to the existing 180 days 

(for a total of up to 540 days from the 

EAD expiration date), automatically 

provided to certain applicants seeking a 

renewal of their EADs under 8 CFR 

274a.13(d)(1). 

In developing the populations 

examined for this analysis, it is useful 

to discuss four categories. First, there 

are applicants whose auto-extended 

EADs under the relevant categories have 

lapsed and whose renewal Forms I–765 

have since been approved, providing 

them with a new grant of employment 

authorization and/or new 

documentation. Second, there are 

applicants whose auto-extended EADs 

have lapsed but renewal Forms I–765 

have not yet been approved as of the 

date of the most recent data applicable 

to this analysis (December 31, 2021). 

Third, there are applicants whose EADs 

are still valid, including being within 

the 180-day auto-extension period, but 

whose auto-extension period will expire 

over the next 120 days, in the timespan 

leading up to the TFR taking effect (the 

near-term period captures the date of 

the analysis, which is January 1, 2022, 

through mid-April 2022). Fourth are the 

applicants whose EAD would lapse after 

the TFR becomes effective if it were not 

for the TFR. These population 

components will be considered ‘‘past,’’ 

‘‘current,’’ ‘‘near-term,’’ and ‘‘future.’’ 

In this specific case, we think it is 

most appropriate to attribute the 

impacts to the population that is current 

in terms of being impacted, or that 

could be impacted in the near-term 

timespan leading up to the TFR, and the 

future, when the TFR is in effect. Hence, 

while we draw on data and information 

from the pool of applicants whose autoextended EADs lapsed but whose 

renewal Forms I–765 applications were 

subsequently approved, they are not 

part of the population affected by the 

rule. 

DHS analyzed pending renewal Form 

I–765 filing and processing information 

and determined that the current pool of 

relevant-category Form I–765 renewals 

that have expired and are pending in a 

lapse-state of the current analysis stands 

at 66,077. Furthermore, the near-term 

population (120-day period starting on 

January 1, 2022) is 96,786. For the 

future population, USCIS estimates with 

about 30,000 additional EADs per 

month are at risk of lapse without 

additional adjudication efforts. For the 

future, we also relied on certain 

projections about USCIS’s efforts to 

reduce backlogs to make initial 

estimates. If current adjudication trends 

hold steady, about 14,500 EADs (10,500 

per month for the C08, 3,000 per month 

C09, and 1,000 for the rest automatic 

extension-eligible categories) per month 

would lapse for the duration of the 

rule’s effective timeframe. Over 18 

months, that would be 261,000 new 

applicants who would lose at least one 

day of employment authorization 

without this rule. If, however, we 

assume a linear decrease in processing 

times such that by the end of the 18 

months they were back to more 

reasonable levels, then about 138,600 

individuals would lose employment 

authorization during the 18-month time 

frame (500 per month C08, 300 per 

month C09, and 100 per month for all 

others at the end of the period) without 

this rule. Hence, as depicted in Table 

10, a range for the future population 

would be 138,600 to 261,000. 

TABLE 10—TFR FUTURE POPULATION PROJECTIONS

Approx. days Month 

Additional 

EADs facing 

lapse each 

month without 

additional efforts to reduce 

lapses 

Future low bound Future upper bound 

USCIS efforts 

to reduce 

lapses, outside 

of this rule: linear improvement of 800 

each month 

Sum of lapsed 

EADs 

USCIS efforts 

to reduce 

lapses, outside 

of this rule: no 

improvement 

over 18 

months 

Sum of lapsed 

EADs 

(A) (B) (A¥B) (C) (A¥C) 

30 ............................................................. 1 30,000 15,500 14,500 15,500 14,500 

60 ............................................................. 2 30,000 16,300 13,700 15,500 14,500 


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I I I 
Federal Register / Vol. 87, No. 86 / Wednesday, May 4, 2022 / Rules and Regulations 26641 

166 66,077 ‘‘current’’ + 96,786 ‘‘near-term’’ + 

138,600 ‘‘future’’ = 301,463 total (low end of the 

range) 66,077 ‘‘current’’ + 96,786 ‘‘near-term’’ + 

261,000 ‘‘future’’ = 423,863 total (high end of the 

range). 

167 Data provided by DHS, USCIS Office of 

Performance and Quality (OPQ); Claims 3 and SAS 

PME; obtained on January 17, 2022. 

168Source: BLS, The Employment Situation— 

November 2021, https://www.bls.gov/news.release/ 

archives/empsit_12032021.pdf (last visited Dec. 10, 

2021). 

169Calculation was made from EAD filing data, 

Form I–765, Application for Employment 

Authorization, Eligibility Category and Filing Type 

FY 2003 through 2021, https://www.uscis.gov/sites/ 

default/files/document/data/I-765_Application_for_

Employment_FY03-21.pdf (last updated Oct. 2021). 

Due to the increase in backlogs, the approval rate 

was calculated as the number of approvals divided 

by the sum of approvals and denials, rather than the 

receipts basis. 

TABLE 10—TFR FUTURE POPULATION PROJECTIONS—Continued 

Approx. days Month 

Additional 

EADs facing 

lapse each 

month without 

additional efforts to reduce 

lapses 

Future low bound Future upper bound 

USCIS efforts 

to reduce 

lapses, outside 

of this rule: linear improvement of 800 

each month 

Sum of lapsed 

EADs 

USCIS efforts 

to reduce 

lapses, outside 

of this rule: no 

improvement 

over 18 

months 

Sum of lapsed 

EADs 

(A) (B) (A¥B) (C) (A¥C) 

90 ............................................................. 3 30,000 17,100 12,900 15,500 14,500 

120 ........................................................... 4 30,000 17,900 12,100 15,500 14,500 

150 ........................................................... 5 30,000 18,700 11,300 15,500 14,500 

180 ........................................................... 6 30,000 19,500 10,500 15,500 14,500 

210 ........................................................... 7 30,000 20,300 9,700 15,500 14,500 

240 ........................................................... 8 30,000 21,100 8,900 15,500 14,500 

270 ........................................................... 9 30,000 21,900 8,100 15,500 14,500 

300 ........................................................... 10 30,000 22,700 7,300 15,500 14,500 

330 ........................................................... 11 30,000 23,500 6,500 15,500 14,500 

360 ........................................................... 12 30,000 24,300 5,700 15,500 14,500 

390 ........................................................... 13 30,000 25,100 4,900 15,500 14,500 

420 ........................................................... 14 30,000 25,900 4,100 15,500 14,500 

450 ........................................................... 15 30,000 26,700 3,300 15,500 14,500 

480 ........................................................... 16 30,000 27,500 2,500 15,500 14,500 

510 ........................................................... 17 30,000 28,300 1,700 15,500 14,500 

540 ........................................................... 18 30,000 29,100 900 15,500 14,500 

Cumulative Total ............................... ........................ ........................ 138,600 ........................ 261,000 

Note: A linear reduction in the monthly shortfall of 14,500, over 18 months is 805.6, rounded to 800 in these projections for simplicity. 

We stress that these estimates were 

not made via a formal modelling or time 

series analysis approach, as variables 

could affect the population over time 

via changes in volumes, processing 

times, and other factors that are not 

possible to predict. As such, DHS 

acknowledges the uncertainties in these 

estimates, but they represent the 

potential population for the impact 

estimates using the best available 

information at the time of this analysis. 

We thus define the broad population 

baseline (denoted generally as ‘‘PB’’) as 

the sum of the three components, 

which, given the range for the future, 

would lie between 301,463 and 

423,863.166 We next proceed to make a 

few adjustments to PB. First, for the 

current population, we parsed out late 

filers (who are not eligible for the 180- 

day automatic extension) and some 

applications that may have lapsed for 

other reasons not exclusive to the 

context of the TFR to obtain a narrower 

population of 65,000.167

An assumption that is implicit in the 

populations developed below is that 

every individual with a lapsed EAD 

would be unauthorized to work. In 

reality, some of the individuals may be 

authorized to work—or become 

authorized to work—incident to status 

and merely relying upon the EAD to 

evidence that employment 

authorization. Others may be relying 

upon the EAD as a government-issued 

identity document and not using it to 

obtain employment. In either instance, 

USCIS does not know, and is unable to 

reasonably estimate, how many 

individuals or what percentages of the 

populations may be separately 

employment authorized or otherwise 

not relying on the EAD to document 

their employment authorization. It is 

possible, therefore, that the lower bound 

estimate of population is overstated. 

All the impacts that we estimate 

quantitatively rely on labor earnings by 

the relevant individuals with EADs. The 

assessments of possible impacts rely on 

the assumption that everyone who was 

approved for an EAD under the relevant 

categories entered the labor force. DHS 

believes this assumption is justifiable 

because applicants would generally not 

have expended the direct filing (for the 

pertinent EAD categories in which there 

is a filing fee) and time-related 

opportunity costs associated with 

applying for an EAD if they did not 

expect to recoup an economic benefit. 

Realistically, however, individuals 

might not be employed for any number 

of other reasons not specifically relevant 

to this action. The national 

unemployment rate (‘‘UR’’) as of 

November 2021, is 4.2 percent.168 There 

is constant and considerable job 

turnover in the labor market even when 

the unemployment rate is low. 

Individuals could be unemployed due 

to this normal turnover or from any 

number of case-specific factors and 

conditions. As such, we believe it is 

reasonable to scale the population to 

account for unemployment. In addition, 

not all Form I–765 renewal applications 

are approved. DHS calculated the 

applicable Form I–765 renewal approval 

rate (‘‘RA’’) for FY 2020 through 2021 

filings, which was 92.7 percent.169 To 

obtain the adjusted population (‘‘PA’’) 

we use the formula: PB × (1¥UR) × (RA), 

which yields a population that could 

range from 266,841 to 375,545. These 

population data and associated shares of 

the totals are presented in Table 11. 


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26642 Federal Register / Vol. 87, No. 86 / Wednesday, May 4, 2022 / Rules and Regulations 

170See Ernie Tedeschi, Americans Are Seeing 

Highest Minimum Wage in History (Without Federal 

Help), N. Y. Times (Apr. 24, 2019), https://

www.nytimes.com/2019/04/24/upshot/whyamerica-may-already-have-its-highest-minimumwage.html. We note that with the wage level applies 

to 2019, but we do not make an inflationary 

adjustment because not all minimum wage levels 

are set to adjust with inflation. 

171 Data were provided by DHS, USCIS 

Immigration Records and Identity Services 

Directorate (IRIS), Verification Division; obtained 

on December 23, 2021. 

TABLE 11—ESTIMATED TFR POPULATION

Module A. baseline Low bound Upper bound 

Component Number Share 

(percent) Number Share (percent) 

i. Current .......................................................................................................... 66,077 21.9 66,077 15.6 

ii. Near-term ..................................................................................................... 96,786 32.1 96,786 22.8 

iii. Future .......................................................................................................... 138,600 46.0 261,000 61.6 

Total .......................................................................................................... 301,863 100.0 423,863 100.0 

Module B. adjusted Low bound Upper bound 

Component Number Share 

(percent) 

Number Share 

(percent) 

i. Current .......................................................................................................... 57,795 21.7 57,795 15.4 

ii. Near term ..................................................................................................... 85,956 32.2 85,956 22.9 

iii. Future .......................................................................................................... 123,091 46.1 231,794 61.7 

Total .......................................................................................................... 266,841 100.0 375,545 100.0 

Source: USCIS analysis of EAD renewal filing data, provided by DHS, USCIS Office of Performance and Quality (OPQ); data provided 1–1– 

2022. Estimate for the future population provided by OPQ on 2–3–2022. 

The adjusted population captures the 

population that will incur impacts 

applicable to both labor earnings for 

individuals and labor turnover costs to 

employers. While some information on 

employment is available through EVerify (discussed below) we cannot 

determine how many individual 

employers would be impacted. The high 

population bound would represent the 

maximum number of businesses 

impacted under a scenario in which 

each business hired one and only one 

individual from the population. 

There is an important caveat to the 

adjusted populations upon which DHS 

will base our estimated impacts. Over 

time, the backlog and pending pool will 

evolve according to multiple factors. 

While we have attempted to account for 

future changes in the backlog based on 

the information we have available to us 

at this time, it is possible that other 

factors may change that we have been 

unable to capture such as future surges 

in renewal applications. Therefore, DHS 

acknowledges the uncertainty in the 

above estimated ranges of affected 

populations and that the number of 

individuals impacted over the course of 

time may differ from our adjusted 

population. 

3. Impact Analysis 

This section is organized into 

modules as follows: In Module A, DHS 

develops earnings levels for the EAD 

renewal filers. 

Module B focuses on labor earnings 

impacts and is divided into two 

sections. First, the analytical procedures 

and results applicable to durations for 

auto-extended EADs that lapsed but 

where renewal Form I–765 applications 

were since approved are detailed; as 

described in the preceding section, this 

portion is not part of the adjusted 

population affected by this rule, but 

metrics and data derived from it are 

vital to the subsequent estimation 

procedures. Second, the requisite 

impact simulations for the impacted 

populations are calibrated, run, and the 

results presented. 

Module C addresses labor turnover 

cost savings from the rule. Module D 

collates the monetized impacts and 

reports the discounted terms, since the 

TFR will stretch past one year. Module 

E discusses the impacts from an 

economic and business perspective, and 

Module F concludes with consideration 

of other possible effects. 

Since we are dealing with multiple 

variables, we use abbreviations where 

possible, as in the above discussion of 

the population. 

Module A. Earnings of EAD Renewal 

Applicants 

We expect two broad types of impacts 

from this TFR that are estimated and 

quantified. First, there will be impacts 

to eligible individual EAD holders in 

terms of their ability to maintain labor 

earnings. Second, impacts will accrue to 

businesses that employ the EAD holders 

in maintaining continuity of 

employment and thus avoiding labor 

turnover costs. A central component of 

both impacts is the earnings of the EAD 

renewal filers, which figure prominently 

into the monetized estimates. An 

important factor in the estimation 

procedure requires establishing a range 

bounded by a lower and upper level. 

The Federal minimum wage is $7.25 

per hour; however, in this rulemaking, 

we rely on the national ‘‘effective 

minimum wage’’ of $11.80 for the 

forthcoming estimation procedures, 

which considers the diverse lower wage 

bounds practiced across U.S. States.170

Because the individuals renewing 

EADs would be relatively new entrants 

to the labor force, we would not expect 

most of them to earn high wages. 

However, it is likely that some earn 

wages above the minimum. Because the 

EADs impacted do not include or 

require, at the initial or renewal stage, 

any data regarding wages, DHS has no 

information from the associated forms 

concerning earnings, occupations, 

industries, positions, or businesses that 

may employ such workers. DHS can add 

some robustness to the estimates by 

incorporating actual data concerning the 

employment of the EAD holders to draw 

inference on their earnings. 

DHS obtained FY 2020 E-Verify 

(‘‘EV’’) records for the EAD categories 

potentially impacted, which yielded 

4.71 million records.171 These records 

neither distinguish between an EV case 

for an initial EAD, a renewal EAD, or 

the EV case result, but they do provide 

information that we can draw from 

regarding employment. The data record 

the North American Industry 

Classification System (NAICS) code, 


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172Additional details are available in the 

Appendix, which is located in the Docket for this 

rulemaking on www.regulations.gov. 

173The earnings information for the NAICS codes 

are found in the ‘‘May 2020 National IndustrySpecific Occupational Employment and Wage 

Estimates’’ in the BLS Occupational Employment 

and Wage Statistics (OEWS) portal, https://

www.bls.gov/oes/2020/may/oessrci.htm (last 

updated Mar. 31, 2021). The national average wage 

is also found in the above OEWS suite, https://

www.bls.gov/oes/2020/may/oes_nat.htm (last 

updated Mar. 31, 2021). 

174OCB ranks density fit according to internal 

routines that evaluate the appropriateness of several 

tests according to the sample size/population. In 

this case, the Gamma density function fits the data 

best based on all continuous distributions subject 

to a scoring method applicable to the test statistic 

of the Anderson-Darling (A–D) test, which in this 

case is 40.84 (it is not however, based on a test of 

significance. For sample sizes and populations that 

are large, exact tests of significance based on 

p-values are generally unreliable in terms of 

providing evidence in support of the null 

hypothesis for any distribution). 

which is utilized by Federal statistical 

agencies in classifying business 

establishments. The EV data does not 

provide information on job type or 

occupation, but it does substantiate the 

NAICS code pursuant to the 3-digit 

‘‘subsector’’ level (with a few 

exceptions). 

Analysis of the EV records shows that 

they disproportionately accrued to a 

small subset of subsectors. Of one 

hundred represented subsectors, only 

four exhibited shares higher than 10 

percent—Professional, Scientific, & 

Technical Services (22.7 percent), Other 

Information Services (13.3 percent), 

Administrative and Support Services 

(13.0 percent), and internet Service 

Providers, Web Search Portals, and Data 

Processing Services (11.6 percent). 

Moreover, the upper quartile is reached 

with just eleven subsectors. The average 

individual share across these eleven 

subsectors was 6.9 percent, while for the 

entire remainder the individual average 

was 0.3 percent. Given this 

concentration, we will center the 

analysis on these eleven subsectors. 

We rescaled the shares of the 

subsectors according to the total number 

of records for these eleven subsectors 

(3.55 million) and obtained the average 

hourly wage for all occupations within 

the relevant NAICS codes from BLS. We 

then calculated a weighting factor input, 

which is the product of the wage and 

the rescaled share, and then summed 

across all rows to obtain a weighted 

average of $36.78.172 We applied this 

figure as the upper earnings bound, 

noting that it is more than one-third 

(35.9 percent) higher than the current 

national average wage weighted across 

all occupations, of $27.07.173

Module B. Impacts That Could Accrue 

to Labor Earnings 

1. Duration Analysis for Previously 

Lapsed EAD Renewals 

To estimate the impacts that could 

accrue to labor earnings, DHS extracted 

a filing sample size and adjudication 

records on 31,676 auto-extended EADs 

for the relevant categories which had 

lapsed and where the renewal Form I– 

765 applications were subsequently 

approved from June–December 31, 2021. 

This time frame was chosen to draw 

recent data in context of the problem set 

being addressed. For each record, we 

calculated the duration in calendar days 

(‘‘DL’’) applicable to the end of the 

initial EAD validity date and the 

eventual approval of the renewal Form 

I–765 application in cases where the 

auto-extended EAD had lapsed. The 

analysis of the lapse-data shows that the 

durations are not normally distributed 

and in fact display a strong positive 

skew; this is because the majority of the 

pending EADs are resolved within the 

first 50 days after lapsing. Less than 10 

percent of the pending EADs take more 

than 115 days to be approved. Please see 

Table 12 below for a breakout of the 

number of days the EADs have lapsed. 

We utilized the Oracle Crystal Ball®

Modelling and Simulation Software 

(‘‘OCB’’) to analyze the data. OCB 

indicates that the Gamma density 

function provides the best fit.174 The 

Gamma distribution is a member of the 

exponential distributions and is 

applicable in situations where the data 

displays considerable variance, is 

restricted to positive values, and is 

skewed to the right (positively skewed). 

It is frequently utilized in analyses to 

predict durations and wait times until 

future events occur. Overall, the range 

of the lapse-durations is very high. 

However, values of more than 360 days 

have a very small probability, 0.32 

percent, of being realized. 

To illustrate the feature of the lapsedurations, we provide the associated 

probability plot in the Appendix (Figure 

A.2). The value bars are overlayed with 

the gamma curve, which visually 

displays a very good fit. In addition, we 

can see that as the values get to about 

180 or so, they asymptotically converge 

to zero. We have also marked the plot 

with the mode (the most frequently 

observed value, of 7), the median, (40.0), 

and the mean (52.5). The larger mean 

compared to the median confirms the 

positive skew, as it is generally 

indicative that unusually high 

individual values tend to pull the mean 

above the median, the latter of which is 

not significantly impacted by the skew. 

Figure A.2 is trimmed to 540 days, and 

shows a marker for 360 days, as the 

latter is the maximum lapse duration 

this rule can prevent as it provides a 

temporary increase of 360 days beyond 

the existing 180-day auto-extension 

period (for a total automatic extension 

period of 540 days). The value of 360 is 

at the 99.8th percentile. At this level, 

there is still almost a zero probability of 

a lapse in an EAD occurring with this 

rule’s temporary increase to the autoextension period. The percentiles 

presented in Table 12 represent the 

fitted values under the Gamma density 

curve for DL up to 360 days. 

TABLE 12—PERCENTILES FOR THE

NUMBER OF CALENDAR DAYS BETWEEN WHEN AUTO-EXTENDED

EADS EXPIRED AND RENEWAL

FORMS I–765 WERE SUBSEQUENTLY

APPROVED IN RECENT MONTHS

[‘‘Lapse Duration’’ in calendar days] 

Percentile 

Gamma 

distribution 

(calendar 

days) 

0 ................................................ 1 

10 .............................................. 7 

20 .............................................. 13 

30 .............................................. 19 

40 .............................................. 28 

50 .............................................. 40 

60 .............................................. 53 

70 .............................................. 69 

80 .............................................. 88 

90 .............................................. 114 

100 ............................................ 358+ 

Source: USCIS analysis of EAD data; provided by DHS, USCIS, OPQ, Claims 3 database; obtained on 12–17–2021. Analysis conducted with OCB and SAS VIYA PME. 

As the percentiles increase, the 

durations increase at a consistent rate; 

however, the upper percentile exhibits a 

significant jump. This data therefore 

corresponds to the probability graph in 

showing that once the 90th percentile is 

reached, the lapse-durations begin to 

diverge from the distribution to that 

point and gravitate to almost zero. 

2. Simulation and Impact Estimation 

The adjusted population (‘‘PA’’) of 

266,841 to 375,545 individuals could 

incur impacts that would result in 

stabilized earnings, as there would be 

no disruption to their earnings under 

the TFR. For the estimation procedure 

we account for worker benefits by 

calculating a benefits-to-wage multiplier 

using the most recent BLS information 

detailing the average employer costs for 

employee compensation for all civilian 

workers in major occupational groups 

and industries. DHS relies on a benefitsto-wage multiplier (‘‘BM’’) of 1.45 and, 

therefore estimates the full opportunity 

cost per applicant, including employee 


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175The benefits-to-wage multiplier is applicable 

to civilian workers and is calculated as follows: 

($38.91 Total Employee Compensation per hour)/ 

($26.85 Wages and Salaries per hour) = 1.44916 = 

1.45 (rounded). See BLS, Economic News Release, 

Employer Cost for Employee Compensation (June 

2021), Table 1, Employer Costs for Employee 

Compensation by ownership (dated September 16, 

2021, reissued Dec. 17, 2021), https://www.bls.gov/ 

news.release/archives/ecec_09162021.htm (last 

visited Feb. 23, 2022). 

176 DHS assumes that all EAD renewal applicants 

are employed full-time; DHS recognizes that some 

employees may be employed only part-time. DHS 

recognizes this may result in an overestimate of the 

below stabilized earnings estimates. 

177PA × EH × BM × Ts × DL = 266,841 to 375,545 

Adjusted Population × $11.80 to $36.78 Hourly 

Earnings × 1.45 Benefits Multiplier × 5.714 Time 

Scalar × Gamma Distributed Lapse Duration in 

Calendar Days. 

178The certainty level is based on the entire range 

of forecast values, so the 95 percent certainty range 

is the range between which 95 percent of forecasted 

values are expected to fall, regardless of proximity 

to the mean. Roughly speaking, the 95 percent 

certainty bound would generally capture the 

distribution-specific forecast values lying between 

the 2.5th and 97.5th percentiles. 

179 In one sense, the stabilized earnings impacts 

are overstated a bit. For some portion of the nearterm population, the effective date of the TFR 

would interrupt their EAD lapse such that the lapse 

would not be as long as it otherwise would. It 

would be extremely difficult to attempt to estimate 

this reality quantitatively, as, over the course of the 

near-term, EADs would lapse at different points in 

time and some would be approved prior to the TFR 

while others would have their lapse interrupted by 

it. 

180https://www.cnbc.com/2021/08/18/61percentof-americans-paid-no-federal-income-taxes-in2020-tax-policy-center-says.html (last updated Aug. 

20, 2021) and for varying State income tax rates see, 

https://www.thebalance.com/state-income-taxrates-3193320 (last updated Jan. 3, 2022). 

181The various employment taxes are discussed 

in more detail, see https://www.irs.gov/businesses/ 

small-businesses-self-employed/understandingemployment-taxes (last updated Mar. 14, 2022). See 

IRS Publication 15, Circular E, Employer’s Tax 

Guide for specific information on employment tax 

rates (Dec. 16, 2021). https://www.irs.gov/pub/irspdf/p15.pdf. Relevant calculation: (6.2 percent 

Social Security + 1.45 percent Medicare) × 2 

employee and employer losses = 15.3 percent total 

estimated public tax impact. 

wages and salaries and the full cost of 

benefits such as paid leave, insurance, 

retirement, and other benefits.175 The 

total rate of compensation for the 

effective minimum hourly wage is 

$17.11 ($11.80 × benefits burden of 

1.45), which is 62.8 percent higher than 

the basic Federal minimum wage of 

$7.25. Burdened for benefits, the 

weighted average hourly wage (derived 

from the EV analysis) is $53.33 ($36.78 

× benefits burden of 1.45). An hourly 

benefits-burdened earnings bound of 

$17.11–$53.33 provides a range that we 

think is realistic to estimate the impacts 

for this TFR. 

DHS is interested in estimating the 

mean and a range for the impacts that 

is likely to be realized. Since the 

population, earnings, and lapsedurations all vary within a range, and 

noting especially high variance of the 

latter, we employ via OCB a simulation 

approach. For the earnings and 

population, we rely on the uniform 

distribution. This is a discreet 

distribution which essentially means 

that any value in the range has the same 

probability as being selected as any 

other value. This structure is chosen 

because we have no evidence or data to 

suggest that the earnings or population 

would tend to cluster at either the low 

or high end of the range. The minimum 

and maximum level are pursuant to the 

relative figures in preceding paragraph. 

The Gamma distribution is generally 

continuous in the upper tail. However, 

because the software is utilized 

extensively for scenario-specific and 

risk management simulations, we can 

calibrate the forthcoming simulation to 

exclude choosing values above a certain 

level, which we tune to the value of 360, 

as that is the maximum day-lapse 

duration this rule can prevent. 

In addition, we introduce a time 

scalar (‘‘TS’’) to account for a typical 8- 

hour workday and 5-day workweek; the 

product of 8 × (5⁄7) is 5.714.176 Denoting 

hourly earnings (‘‘EH’’), under the 

‘‘define forecast’’ toolkit we entered the 

program: PA × EH × BM × Ts × DL and 

tuned the Gamma distribution for the 

produced parameters.177 The tuning 

features for the system are listed in 

Table 13, which includes the threeparameters OCB produced for the 

distribution: 

TABLE 13—CALIBRATION FOR STABILIZED EARNINGS ESTIMATION

Minimum Maximum Distribution 

Population (PA) ....................................................................................................................................... 266,841 375,545 Uniform. 

Fully-loaded Earnings (EH × BM) ............................................................................................................ $17.33 $53.33 Uniform. 

Durations (DL) ......................................................................................................................................... 1 360 Gamma: 

Location: .0017. 

Scale: 44.57. 

Shape: 1.16. 

Source: USCIS Analysis. 

OCB repeatedly calculates results 

using a different set of random values 

from the range of values and probability 

distributions described in Table 13 

above to build a model of possible 

results. We ran 100,000 randomized 

seed trials, which is sufficient to 

generate a 95 percent level of precision 

in the results. Based on the simulation, 

the expected value (which is the mean 

of probabilistic-based forecast values) 

for stabilized earnings is $3,354.3 

million.178 We also generated a 95 

percent certainty range, which reports 

$159.2 million to $12,506.4 million, 

noting that the extreme range is due to 

the high variation in the inputs.179 A 

sensitivity analysis that scores the 

inputs in terms of how much variation 

in each contributes to fluctuation in the 

forecasted values reveals that the vast 

majority, 90.7 percent, of the variation 

was driven by variation in the lapse 

duration-days. 

If, without this rule, businesses would 

not have been able to find replacement 

labor for the position the affected EAD 

renewal applicant filled, then the 

unperformed labor would have resulted 

in a reduction in taxes from employers 

and employees to governments. 

Accordingly, the stabilized earnings 

derived from this rule, and estimated 

above, will prevent such a reduction in 

taxes. It is challenging to quantify 

Federal and State income tax impacts of 

employment in the labor market 

scenario because individual and 

household tax situations vary widely as 

do the various State income tax rates.180

But DHS is able to estimate the potential 

contributory effects on employment 

taxes, namely Medicare and Social 

Security, which have a combined tax 

rate of 7.65 percent (6.2 percent and 

1.45 percent, respectively).181 With both 

the employee and employer paying their 

respective portion of Medicare and 

Social Security taxes, the total estimated 

level of tax transfer payments from 

employees and employers to Medicare 

and Social Security is 15.3 percent. 

We estimate the tax impacts on the 

unburdened earnings basis. Denoting 


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182We 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. 

183We have no basis to say how many employers 

will be impacted, because any individual employer 

could have hired more than one of the EAD holders 

in the population. Therefore, if each individual was 

hired by one and only one business, the number of 

employers impacted would converge to the 

maximum population. 

184For additional descriptions of the components 

of labor turnover costs, see ‘‘Employee retention: 

The Real Cost of Losing an Employee,’’ by Gabrielle 

Smith, PeopleKeep (September 17, 2021), https://

www.peoplekeep.com/blog/employee-retention-thereal-cost-of-losing-an-employee. 

185See ‘‘There Are Significant Business Costs to 

Replacing Employees,’’ By Heather Boushey and 

Sarah Jane Glynn (Nov. 16, 2012), Center for 

American Progress, https://www.americanprogress.

org/issues/economy/reports/2012/11/16/44464/ 

there-are-significant-business-costs-to-replacingemployees/. 

186See ‘‘This Fixable Problem Costs U.S. 

Businesses $1 Trillion,’’ by Shane Mcfeely and Ben 

Wigert, Workplace (March 13, 2019): https://

www.gallup.com/workplace/247391/fixableproblem-costs-businesses-trillion.aspx. See also 

‘‘Dangers of Turnover: Battling Hidden Costs,’’ by 

Kate Heinz (last updated: March 25, 2020), Built in, 

https://builtin.com/recruiting/cost-of-turnover. 

187See ‘‘The Real Cost of Employee Turnover in 

2021,’’ Terra Staffing Group (Nov. 4, 2020), https:// 

www.terrastaffinggroup.com/resources/blog/cost-ofemployee-turnover. See also ‘‘112 Employee 

Turnover Statistics: 2021 Causes, Cost & Prevention 

Data,’’ by Louie Andre, Finances Online, https://

financesonline.com/employee-turnover-statistics/ 

#cost. 

188See ‘‘Improving U.S. Labor Standards and the 

Quality of Jobs to Reduce the Costs of Employee 

Turnover to U.S. Companies,’’ By Kate Bahn and 

Carmen Sanchez Cumming (December 2020), 

Washington Center for Equitable Growth, at: https:// 

equitablegrowth.org/wp-content/uploads/2020/12/ 

122120-turnover-costs-ib.pdf. The data is found in 

the methodological appendix, located in the Docket 

for this rulemaking. 

the tax impact ‘‘TI’’ and stabilized 

earnings ‘‘ES,’’ for the three values 

reported the tax impact is derived as: (TI

× ES)/BM.182 If, without this rule, all 

employers would have been unable to 

find replacement labor for the position 

the EAD renewal applicant filled, this 

rule will prevent a reduction in 

employment taxes from employers and 

employees to the Federal Government of 

$353.9 million, but could range from 

$16.8 million to $1,319.5 million. The 

actual value of tax impacts will depend 

on the number of affected EAD holders 

that businesses would have been able to 

easily find reasonable labor substitutes 

for in the absence of this rule. 

Module C. Labor Turnover Cost Impacts 

This TFR is expected to generate a 

labor turnover cost savings to employers 

of affected EAD holders. DHS bases the 

assessment of these costs on the 

assumption that every EAD applicable 

to the adjusted population that would 

have lapsed without this rule would 

have generated an involuntary 

separation from an employer, and that 

the separation is due to no other factors. 

While DHS cannot estimate how many 

actual employers would be impacted 

because DHS does not have employer 

information for all affected EAD 

holders, DHS can make an informed 

estimate of the aggregate scope of the 

impact, embodied in a cost-savings to 

the employers.183

Employment separations can generate 

substantial labor turnover costs to 

employers that can be divided into 

several components. First are the direct 

or ‘‘hard’’ costs that involve separation 

and replacement costs. The separation 

costs include exit interviews, severance 

pay, and costs of temporarily covering 

the employee’s duties and functions 

with other employees, which may 

require overtime or temporary staffing. 

The replacement costs typically include 

expenses of advertising positions, 

search and agency fees, screening 

applicants, interviews, background 

verification, employment testing, hiring 

bonuses, and possible travel and 

relocation costs. Once hired, employers 

face additional training, orientation, and 

assessment costs. 

Second, direct costs involve loss of 

productivity and possibly profitability 

due to operational and production 

disruptions, which can include errors 

from other employees that may 

temporally fill the position. Some 

analysts have identified a third cost 

segment, which is a type of indirect 

cost, which encompasses loss of 

institutional knowledge, networking, 

and impacts to work-culture, morale, 

and interpersonal relationships. This 

last type of cost is almost impossible to 

measure quantitatively.184

There are numerous studies and 

reports concerning labor turnover costs 

(‘‘LTC’’) available from Human Resource 

entities which are cited across 

correspondent literature. Some focus on 

specific occupations, industries, salary 

levels, and often measure LTC in 

slightly different ways. LTC is generally 

reported as a share (percentage, ‘‘LC’’) of 

the annual earnings (‘‘EA’’) or an actual 

cost per employee for which a 

percentage can be calculated. Many 

reports cite a 2012 report published by 

the Center for American Progress (CAP) 

that surveyed more than 30 studies that 

considered both direct (e.g., separation 

and replacement) and indirect (e.g., loss 

of institutional knowledge) costs. In 

Module B above, DHS captures 

preserved productivity savings had 

employers not been able to immediately 

find replacement labor for EAD renewal 

applicants without this rule. DHS 

requests comment on how, or if, that 

measure of productivity may overlap 

with the types of productivity covered 

in the CAP report captured here, such 

as from the substitutability of 

replacement labor. 

The CAP and other reports that we 

reviewed confirm three central aspects 

of LTC: (i) That they vary substantially 

across industries and jobs; (ii) that they 

tend to grow (in absolute and percentage 

terms) according to skill level and 

earnings; and (iii) that they are higher 

for salaried workers compared to 

hourly-wage earners.185 The reporting 

notes that specialized technical jobs and 

highly paid jobs in line with senior or 

executive levels, which involve high 

levels of education, credentials, and 

stringent hiring criteria, can generate 

disproportionately high LTC that can 

reach more than 100 percent of the 

salary—compared to jobs with low 

educational and technical 

requirements.186 However, the CAP 

survey found that costs tend to range 

within a bound of 10 percent to around 

40 percent of the salary. For example, 

CAP found despite wide variation and 

range, for workers earning $50,000 or 

less, and for workers earning $75,000 or 

less, which, at the time of the study in 

2012 corresponded to, the 75th and 90th 

percentiles of typical earnings, LTC 

ranged typically from 10 to 30 percent 

of the salary, clustering at about 21 

percent. More recent reports indicate 

that the typical cost is about one-third 

of the salary.187

DHS could nest the information above 

into an estimation procedure, but it 

would be beneficial to examine granular 

data to hone the estimates for two 

reasons. First, it would be valuable to 

quantify the correlation between annual 

earnings and labor turnover costs and 

incorporate it in the forecast procedure. 

Second, it is desirable to obtain a 

distribution for the data—an average 

and median could be gathered from the 

referenced reporting, but there would be 

a gap in terms of other metrics needed 

to calibrate a certain distribution. DHS 

examined a 2020 report by the 

Washington Center for Equitable 

Growth, which updated the earlier CAP 

study results to provide information on 

about thirty studies on LTC.188 We 

selected data points that captured both 

the annual earnings salary (which the 

study benchmarked to 2019 levels) and 

turnover costs. We then culled the data 

applicable to salary levels more than the 

maximum in our earnings bound. At 

2,080 annual work hours, the 

unburdened weighted average EA is 

$76,502 (the higher earnings levels also 

corresponded generally to very high 

LTC that are outside what we think is 


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189 $36.78 × 2,080 = $76,502. DHS assumes that 

all EAD renewal applicants are employed full-time; 

DHS recognizes that some employees may work 

only part-time. However, the $76,502 represents the 

maximum of the range and employees who earn 

less wages, such as those who work part-time, are 

captured by the lower salaries included in the range 

for LTC estimates. 

190For the specific data points used, see the 

Technical Appendix, located in the Docket for this 

rulemaking. 

191OCB indicates that the multiple continuous 

distributions are appropriate for the data but ranks 

the Beta distribution highest in terms of goodness 

of fit with an A–D test statistic of 0.1336. The four 

produced parameters are as follows: minimum= 

0.0314, maximum = .987, alpha = 1.214, Beta = 

4.267. 192Adjusted Population × (1–0.32%) of the 

population whose EAD would be adjudicated after 

the 540-day auto-extension window × $11.80 to 

$36.78 Hourly Earnings × Beta Distributed Labor 

Turnover Cost. 

193The beta distribution includes two parameters, 

alpha (a) and beta (b), which control the shape of 

distribution and thus influence the minimum and 

maximum values. 

194When there are correlated assumptions, OCB 

does not provide sensitivity for the uncorrelated 

input, which, in this case, is the population. As a 

result, the sensitivity analysis indicates that the 

variation in the forecasts was contributed somewhat 

equally by the cost percentage (56.7 percent) and 

the annual earnings (42.7 percent). 

the reasonable range).189 We note that 

we are assuming that the individuals are 

employed full time, as 2,080 annual 

work hours corresponds to a five-day 

work week and 8-hour work-day. We 

welcome public input on this 

assumption. Twenty-seven resulting 

data points were employed for the 

analysis.190 While this may be relatively 

few observations, OCB nevertheless was 

able to fit a Beta density function to the 

data, and we are confident in relying on 

the results. Foremost, the mean of 24.3 

percent and the median of 19.8 percent 

are very similar to the information 

reported in the studies referenced above 

and fall within a substantial range, from 

4.1 percent to 68.7 percent. Second, on 

qualitative grounds the Beta distribution 

is well-suited as a setup. The Beta 

distribution is also a family member of 

the exponential distributions and 

closely resembles the gamma function. 

It is utilized in situations where there is 

substantial variance and is discrete at 

the lower end minimum, further 

restricted to positive values. First, 

negative values can be ruled out in 

context—there cannot be zero cost to an 

employee separation—and thus a lower 

tail cutoff to bound to the cost 

percentage is appropriate. Second, we 

can reasonably conjecture that the costs 

would tend to cluster near the lower tail 

of the distribution (as outlined in the 

CAP report), which is amenable to the 

positive skew of the distribution, 

reinforced by the data resultant mean 

being larger than the median.191

Additionally, the scatterplot (see 

Appendix, Table A.3) with the fitted 

least squares line clearly reveals that LC

is an increasing function of the earnings, 

with a correlation coefficient of 0.661. 

The Ordinary Least Squares regression 

indicates that a $1,000 increase in 

annual earnings leads to a .63 

percentage point increase in labor 

turnover costs (LC). 

DHS notes that the studies utilized to 

develop the turnover cost percentage 

range are based on diverse studies 

across a range of industries and that 

they that measure these costs different 

ways. DHS welcomes public input 

concerning the range we rely on as well 

as the way in which turnover costs are 

tabulated in terms of direct and indirect 

costs, including productivity effects. 

Based on an average of 2,080 annual 

work hours, the unburdened effective 

minimum $11.80 hourly wage maps to 

annual earnings (EA) of $24,544. We 

have made an additional adjustment 

regarding the population. This rule will 

provide EAD renewal applicants with 

stabilized earnings for an additional 360 

days and will prevent turnover costs for 

employers of applicants whose EADs 

will be adjudicated within the 360-day 

timeframe of the rule. However, for the 

0.32 percent of the population whose 

EAD renewal application could still be 

pending after 360 days, this rule will 

delay the turnover costs, not prevent 

them. Accordingly, we have scaled the 

population to exclude 0.32 percent of 

the population whose EAD could still 

lapse. DHS also recognizes that a certain 

number of individuals may have been 

terminated or chosen to leave 

irrespective of this rule and, 

accordingly, this rule won’t prevent 

such turnover. DHS does not have data 

on the number of EAD renewal 

applicants that would have been 

terminated from or left their jobs had 

they not lost employment authorization. 

DHS requests comment on data that 

could be used to make such an 

adjustment. 

We calibrated the Beta distribution for 

the four parameters produced and under 

the ‘‘define forecast’’ function, entered 

the program: PA × EA × LC with 

correlation tuned to 0.661.192 Nesting 

the correlation essentially means that if 

a randomly chosen earnings value is 

high, there is a higher probability that 

a high turnover cost percentage will be 

selected as well and vice versa for lower 

cost percentages. The tuning features for 

the system are listed in Table 14, which 

includes the four parameters for the 

distribution. 

TABLE 14—CALIBRATION FOR TURNOVER COST ESTIMATION

Minimum Maximum Distribution 

Population (PA) ..................................................................................................................................... 265,987 374,343 Uniform. 

Earnings (annual, EA) .......................................................................................................................... $24,544.0 76,502.4 Uniform. 

Turnover cost % (LC) ........................................................................................................................... 4.1% 68.7% Beta: 193

Minimum: .031. 

Maximum: .987. 

Alpha: 1.214. 

Beta: 4.27. 

Correlation: Turnover Cost % and Earnings ........................................................................................ .661 

Source: USCIS Analysis. 

We ran 100,000 randomized seed 

trials, which is sufficient to generate a 

95 percent level of precision in the 

results and tuned the simulation to 

cutoff trials with an LC greater than the 

maximum in our sample, of 68.7 

percent. Based on the simulation, the 

expected value is $4,371.6 million, and 

the 95 percent precision bound results 

in a range of forecasts from $454.5.0 

million to $ 13,509.3 million.194

Module D. Monetized Impacts for the 

TFR 

In Table 15 we collate the 

undiscounted monetized impacts 

derived from the above sections. 


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TABLE 15—SUMMARY OF MONETIZED IMPACT ESTIMATES APPLICABLE TO LABOR EARNINGS AND LABOR TURNOVER

[Undiscounted, in millions] 

Labor earnings Tax impacts * 

Min Mean Max Min Mean Max 

Stabilized earnings ........................................................... $159.2 $3,354.3 $12,506.4 $16.8 $353.9 $1,319.6 

Labor turnover .................................................................. 454.5 4,371.6 13,509.3 0.0 0.0 0.0 

Total .......................................................................... 613.7 7,725.9 26,015.7 16.8 353.9 1,319.6 

* If, without this rule, businesses could not find replacement labor for any of the affected EAD holders, the tax impacts shown represent the 

loss in employment taxes this rule would prevent. The actual amount will depend on how easily businesses would have been able to find replacement labor in the absence of this rule. 

Because the TFR will apply to more 

than one full fiscal year, we also apply 

a discounting framework to the impacts. 

Since there is a one-to-one mapping 

from the population to the impacts, we 

can derive the yearly allocations 

directly from the population figures. 

The approach, encapsulated in Table 16 

in step-by step fashion, builds off the 

population data in Tables 10 and 11. By 

grouping the current and near-term 

populations into year one, and then 

calculating the portion of the future 

population attributable to year one, we 

can logically calculate the year two 

allocation. 

TABLE 16—WORKSHEET FOR IMPACT ALLOCATION ACROSS TWO YEARS

Population segment Low 

population 

High 

population 

A. Current ................................................................................................................................................................ 57,795 57,795 

B. Near-term ............................................................................................................................................................ 85,956 85,956 

C. Year 1 initial (A+B) ............................................................................................................................................. 143,751 143,751 

D. Future .................................................................................................................................................................. 123,091 231,794 

E. Total TFR months ............................................................................................................................................... 18 18 

F. Future by month (D/E) ........................................................................................................................................ 6,838 12,877 

G. Year 1 months .................................................................................................................................................... 12 12 

H. Year 2 months (E¥G) ........................................................................................................................................ 6 6 

I. Year 1 addition (G*F) ........................................................................................................................................... 82,060 154,529 

J. Year 1 total (C+I) ................................................................................................................................................. 225,811 298,280 

K. Year 2 (H*F) ........................................................................................................................................................ 41,030 77,265 

L. Total (check: J+K) ............................................................................................................................................... 266,841 375,545 

M. Year 1 allocation (J/L) ........................................................................................................................................ 84.6% 79.4% 

N. Year 2 allocation (K/L) ........................................................................................................................................ 15.4% 20.6% 

O. Average share: year 1 ........................................................................................................................................ 82.0% 

P. Average share: year 2 ........................................................................................................................................ 18.0% 

As can be gathered from rows M and 

N, the allocations are different 

according to the high and low 

population. However, the impact 

estimates already have incorporated the 

population variation, meaning that we 

need to rely on a single percentage for 

the share allocations. Since the shares 

are close across the population bounds, 

we average them and apply the resulting 

figures, of 82.0 percent and 18.0 

percent, in order (Rows O and P). 

Table 17 provides the allocated 

impacts according to the allocation 

derived above, incorporating sub-tables 

A–C, to account for the average, and low 

and high ends of the certainty bound in 

order. Each sub-table is organized into 

three additional sections, to account for 

undiscounted terms, and those at 3 

percent rate of discount, and a 7 percent 

rate of discount, in order. We parsed out 

the stabilized earnings and labor 

turnover impacts separately, as they will 

embody different types of impacts. 

TABLE 17—MONETIZED EXPECTED VALUE IMPACTS FOR THE TFR 

[Millions] 

Undiscounted Stabilized 

earnings 

Labor 

turnover 

Total Taxes * 

A. Average (Expected Value) 

Year 1 .............................................................................................................................. $2,751.4 $3,585.8 $6,337.2 $290.3 

Year 2 .............................................................................................................................. 602.9 785.8 1,388.7 63.6 

Total .......................................................................................................................... 3,354.3 4,371.6 7,725.9 353.9 


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TABLE 17—MONETIZED EXPECTED VALUE IMPACTS FOR THE TFR—CONTINUED

[Millions] 

3% Discount Stabilized 

earnings 

Labor 

turnover 

Total Taxes 

Year 1 .............................................................................................................................. $2,671.2 $3,481.4 $6,152.6 $281.9 

Year 2 .............................................................................................................................. 568.3 740.7 1,309.0 60.0 

Total .......................................................................................................................... 3,239.6 4,222.1 7,461.6 341.8 

Annualized ....................................................................................................................... 1,693.0 2,206.5 3,899.5 178.64 

7% Discount Stabilized 

earnings 

Labor 

turnover 

Total Taxes 

Year 1 .............................................................................................................................. $2,571.4 $3,351.2 $5,922.6 $271.3 

Year 2 .............................................................................................................................. 526.6 686.3 1,213.0 55.6 

Total .......................................................................................................................... 3,098.0 4,037.6 7,135.6 326.9 

Annualized ....................................................................................................................... 1,713.5 2,233.1 3,946.6 180.8 

B. Low end of certainty range 

Undiscounted Stabilized 

earnings 

Labor 

turnover 

Total Taxes * 

Year 1 .............................................................................................................................. $130.6 $372.8 $503.4 $13.8 

Year 2 .............................................................................................................................. 28.6 81.7 110.3 3.0 

Total .......................................................................................................................... 159.2 454.5 613.7 16.8 

Average ............................................................................................................................ 79.6 227.3 306.9 8.4 

3% Discount Stabilized 

earnings 

Labor 

turnover 

Total Taxes 

Year 1 .............................................................................................................................. $126.8 $361.9 $488.7 $13.4 

Year 2 .............................................................................................................................. 27.0 77.0 104.0 2.8 

Total .......................................................................................................................... 153.8 439.0 592.7 16.2 

Annualized ....................................................................................................................... 80.35 229.4 309.8 8.5 

7% Discount Stabilized 

earnings 

Labor 

turnover 

Total Taxes 

Year 1 .............................................................................................................................. $122.0 $348.4 $470.5 $12.9 

Year 2 .............................................................................................................................. 25.0 71.4 96.4 2.6 

Total .......................................................................................................................... 147.0 419.8 566.8 15.5 

Annualized ....................................................................................................................... 81.3 232.2 313.5 8.6 

C. High End of Certainty Range 

Undiscounted Stabilized 

earnings 

Labor 

turnover 

Total Taxes * 

Year 1 .............................................................................................................................. $10,258.4 $11,081.0 $21,339.3 $1,082.4 

Year 2 .............................................................................................................................. 2,248.0 2,428.3 4,676.4 237.2 

Total .......................................................................................................................... 12,506.4 13,509.3 26,015.7 1,319.6 

Average ............................................................................................................................ 6,253.2 6,754.7 13,007.9 659.8 

3% Discount Stabilized 

earnings 

Labor 

turnover 

Total Taxes 

Year 1 .............................................................................................................................. $9,959.6 $10,758.2 $20,717.8 $1,050.9 

Year 2 .............................................................................................................................. 2,119.0 2,288.9 4,407.9 223.6 

Total .......................................................................................................................... 12,078.6 13,047.2 25,125.7 1,274.5 

Annualized ....................................................................................................................... 6,312.39 6,818.6 13,131.0 666.1 


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195Transfer payments are monetary payments 

from one group to another that do not affect total 

resources available to society. See OMB Circular A– 

4 pages 14 and 38 for further discussion of transfer 

payments and distributional effects. Circular 

A–4 (Sept. 17, 2003), https://www.whitehouse.gov/ 

wp-content/uploads/legacy_drupal_files/omb/ 

circulars/A4/a-4.pdf. 

196Bureau of Labor Statistics, Employment 

Situation News Release (November 2021), Table A– 

12, https://www.bls.gov/news.release/archives/ 

empsit_12032021.htm. 

197Bureau of Labor Statistics, Duration of 

Unemployment, Seasonally Adjusted, https://

www.bls.gov/charts/employment-situation/ 

duration-of-unemployment.htm (last visited Mar. 9, 

2022). 

198BLS, Employment Situation, Table A–1. 

Employment status of the civilian population by sex 

and age. The figure applies to the civilian labor 

force, seasonally adjusted, https://www.bls.gov/ 

news.release/archives/empsit_12032021.htm (last 

visited Dec. 14, 2021). 

TABLE 17—MONETIZED EXPECTED VALUE IMPACTS FOR THE TFR—CONTINUED

[Millions] 

7% Discount Stabilized 

earnings 

Labor 

turnover 

Total Taxes 

Year 1 .............................................................................................................................. $9,587.2 $10,054.4 $19,943.3 $1,011.6 

Year 2 .............................................................................................................................. 1,963.5 1,999.2 4,084.5 207.2 

Total .......................................................................................................................... 11,550.8 12,053.7 24,027.8 1,218.8 

Annualized ....................................................................................................................... 6,388.6 6,666.8 13,289.6 674.1 

* If, without this rule, businesses could not find replacement labor for any of the affected EAD holders, the tax impacts shown represent the 

loss in employment taxes this rule would prevent. The actual amount will depend on how easily businesses would have been able to find replacement labor in the absence of this rule. 

For the discounted figures, the 

annualized amounts are the average 

annual equivalence basis. Since the 

inputs are different for each year, the 

annualized terms differ across discount 

rates. 

Module E. Economic and Business 

Impacts 

As explained previously, DHS does 

not know what the next best alternative 

would have been for businesses without 

this rule. Accordingly, DHS does not 

know the proportion of the stabilized 

labor earnings estimates developed 

above that would represent cost savings 

to businesses for prevented lost 

productivity or are prevented transfer 

payments from affected EAD holders to 

replacement labor.195 These effects are 

very difficult to quantify and could be 

influenced by multiple factors, but we 

will address the possibilities at a 

conceptual level. 

In the cases where, in the absence of 

this rule, businesses would have been 

able to easily find reasonable labor 

substitutes for the EAD renewal 

applicants, then the impact of this rule 

is preventing a distributional impact 

where the earnings of affected EAD 

holders would be transferred to others, 

who might fill in for (and presumably 

replace) the EAD renewal applicants 

during their earnings lapse. The portion 

of the total estimate of stabilized income 

that would represent this prevented 

transfer payment will depend on the 

ability of businesses to have found 

replacement labor in the absence of this 

rule. 

In the cases where, in the absence of 

this rule, businesses would not have 

been able to easily find reasonable labor 

substitutes for the EAD renewal 

applicants, then the impact of this rule 

is preventing an associated loss of 

productivity for employers. Therefore, 

the portion of the total estimate of 

stabilized income that would represent 

cost savings to employers for prevented 

productivity losses will depend on the 

ability of businesses to have found 

replacement labor in the absence of this 

rule. In this case, the rule may also 

result in additional cost savings to 

employers for prevented profit losses 

and having to choose the next best 

alternative to the EAD holder. 

DHS does not know what this nextbest alternative may be for those 

companies. However, if the replacement 

candidate would have been 

substitutable for the affected EAD 

renewal applicant to a high degree, the 

labor performed by the new candidate 

would not have resulted in changes to 

profits or productivity. Accordingly, if 

the replacement labor is highly 

substitutable, we wouldn’t expect this 

rule to result in cost savings for 

productivity loss as a result of 

employing the next available alternative 

for labor. If, however, the replacement 

labor is a poor substitute and would 

have decreased productivity, then this 

rule will preserve that lost productivity. 

The above discussion involves two 

important points: If employers replaced 

individuals who faced a lapse in their 

EAD after the automatic extension with 

others in the labor force, then once the 

EAD was eventually reauthorized the 

EAD holder would need to conduct a 

new search for a new job. They would 

thus incur direct costs associated with 

seeking new employment. In addition, it 

can take time to establish new 

employment. According to the Bureau 

of Labor Statistics, in November 2021 

the average duration of unemployment 

was 28.9 weeks (about 7 months) and 

the median duration was 12.7 weeks 

(about 3 months).196 This has varied 

historically, according to factors such as 

the overall strength of the economy, 

employment conditions in specific 

industries, individual search effort, and 

geographical considerations.197

Based on this average search time, in 

cases where affected EAD renewal 

applicants would not be able to 

immediately return to their previous 

jobs once their EAD is approved, the 

duration of lapsed earnings this TFR is 

addressing is likely higher than that we 

have relied on from the analysis of the 

data. As a result, search costs and the 

potential for earnings to continue to 

lapse even when the individuals 

affected are able to return to work 

probably makes our estimated impacts 

of the amount in stabilized earnings to 

affected EAD holders smaller than the 

actual impacts. However, we do not 

have a method to allocate the job search 

time to a portion that could be 

conducted while the EAD was in lapse 

mode and a portion that would need to 

be held off until the Form I–765 renewal 

application was approved and a new 

EAD issued. Therefore, it would be 

speculative to try to incorporate these 

additional factors into a cohesive model 

and thus we have not quantified them. 

Module F. Other Impacts 

DHS does not expect material impacts 

to the U.S. labor market from this TFR. 

According to the most recent data 

(applicable to November 2021), the U.S. 

labor force stands at 162,052,000.198 The 

maximum population impacted by the 

TFR is 375,545, which is only 0.23 

percent of the national labor force. 

Without this rule, EAD holders who 

remain eligible for employment 

authorization would encounter delays 


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26650 Federal Register / Vol. 87, No. 86 / Wednesday, May 4, 2022 / Rules and Regulations 

199See 5 U.S.C 804(2). 

200See 5 U.S.C. 808(2). 

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

202The term ‘‘Federal mandate’’ means a Federal 

intergovernmental mandate or a Federal private 

sector mandate. See 2 U.S.C. 1502(1) and 658(6). 

203The Instruction Manual contains the 

Department’s procedures for implementing NEPA 

and was issued November 6, 2014. Instruction 

Manual, https://www.dhs.gov/publication/directive023-01-rev-01-and-instruction-manual-023-01-001- 

01-rev-01-and-catex (last updated Nov. 12, 2021). 

204 40 CFR parts 1500 through 1508. 

in EAD renewals and either be 

unauthorized to work for periods of 

time, or lack documentation reflecting 

their employment authorization. This 

rule is not making additional categories 

eligible for employment authorization; it 

simply temporarily increases the 180- 

day timeframe for those already eligible 

for an automatic extension. It will 

ensure that these EAD holders do not 

experience gaps in employment as a 

result of USCIS processing delays. 

Accordingly, stabilized earnings for 

these EAD holders may also relieve the 

support network of the applicants for 

any monetary or other support that 

would have been necessary during such 

a period of unemployment. This 

network could include public and 

private entities, and it may comprise 

family and personal friends, legal 

services providers and advisors, 

religious and charity organizations, 

State and local public institutions, 

educational providers, and nongovernmental organizations. DHS 

believes these impacts would accrue as 

benefits to the noncitizen EAD holders 

and their families. 

Finally, we have already noted that 

the goal of this TFR is to prevent EADs 

from lapsing, and that the 540-day 

benchmark would cover almost every 

case. For the small portion that lapsed 

for more than 540 days, we have already 

noted that these would embody extreme 

outliers and may be skewed by data 

errors. Nevertheless, for purposes of 

transparency we provide Table 18, 

which shows the share of EADs that 

would lapse under several alternatives 

to the 360-day extension to the existing 

180-day benchmark. 

TABLE 18—PERCENTAGE OF EADS

THAT WOULD LAPSE UNDER ALTERNATIVE EXTENSION-DAY SCENARIOS

The number of extension 

days added to the existing 

180 

Share that 

would lapse 

(percent) 

30 .......................................... 57.7 

60 .......................................... 35.3 

90 .......................................... 19.0 

120 ........................................ 8.41 

180 ........................................ 1.44 

360 ........................................ 0.32 

540+ ...................................... 0.10 

It is important to note that our 

analysis was based on data from June 

through December of 2021. If processing 

times and resultant backlogs are higher 

now, than lapse-durations would 

potentially also be higher, and the 

shares affected may be larger than those 

shown in Table 16. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

(5 U.S.C. 601 et seq.), as amended by the 

Small Business Regulatory Enforcement 

Fairness Act of 1996 (SBREFA), requires 

an agency to prepare and make available 

to the public a regulatory flexibility 

analysis that describes the effect of the 

rule on small entities (i.e., small 

businesses, small organizations, and 

small governmental jurisdictions). The 

RFA’s regulatory flexibility analysis 

requirements apply only to those rules 

for which an agency is required to 

publish a general notice of proposed 

rulemaking pursuant to 5 U.S.C. 553(b) 

or any other law. See 5 U.S.C. 604(a). As 

discussed previously, USCIS did not 

issue a notice of proposed rulemaking 

for this action. Therefore, a regulatory 

flexibility analysis is not required for 

this rule. 

D. Small Business Regulatory 

Enforcement Fairness Act of 1996 

(Congressional Review Act) 

The Congressional Review Act (CRA) 

was included as part of SBREFA by 

section 804 of SBREFA, Public Law 

104–121, 110 Stat. 847, 868, et seq. 

OIRA has determined that this TFR is a 

major rule as defined by the CRA 

because it will result in a major increase 

in costs or prices.199 DHS has complied 

with the CRA’s reporting requirements 

and has sent this rule to Congress and 

to the Comptroller General as required 

by 5 U.S.C. 801(a)(1). As stated in 

section IV.A of this preamble, DHS has 

found that there is good cause to 

conclude that notice, the opportunity 

for advanced public participation, and a 

delay in the effective date are 

impracticable and contrary to the public 

interest. Accordingly, this rule is 

effective immediately upon 

publication.200

E. Unfunded Mandates Reform Act of 

1995 

The Unfunded Mandates Reform Act 

of 1995 (UMRA) is intended, among 

other things, to curb the practice of 

imposing unfunded Federal mandates 

on State, local, and Tribal governments. 

Title II of UMRA requires each Federal 

agency to prepare a written statement 

assessing the effects of any Federal 

mandate in a proposed rule, or final rule 

for which the agency published a 

proposed rule, that includes any Federal 

mandate that may result in a $100 

million or more expenditure (adjusted 

annually for inflation) in any one year 

by State, local, and Tribal governments, 

in the aggregate, or by the private 

sector.201 This rule is exempt from the 

written statement requirement, because 

DHS did not publish a notice of 

proposed rulemaking for this rule. 

In addition, this rule does not contain 

a Federal mandate as the term is defined 

under UMRA.202 The requirements of 

title II of UMRA, therefore, do not 

apply, and DHS has not prepared a 

statement under UMRA. 

F. Executive Order 13132 (Federalism) 

This rule does not have substantial 

direct effects on the States, on the 

relationship between the National 

Government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with section 6 of E.O. 13132, 

64 FR 43255 (Aug. 4, 1999), this rule 

does not have sufficient federalism 

implications to warrant the preparation 

of a federalism summary impact 

statement. 

G. Executive Order 12988 (Civil Justice 

Reform) 

This rule was drafted and reviewed in 

accordance with E.O. 12988, Civil 

Justice Reform. This rule was written to 

provide a clear legal standard for 

affected conduct and was reviewed 

carefully to eliminate drafting errors and 

ambiguities, so as to minimize litigation 

and undue burden on the Federal court 

system. DHS has determined that this 

rule meets the applicable standards 

provided in section 3 of E.O. 12988. 

H. National Environmental Policy Act 

DHS Directive 023–01 Rev. 01 and 

Instruction Manual 023–01–001–01 Rev. 

01 (Instruction Manual) 203 establish the 

policies and procedures that DHS and 

its components use to comply with the 

National Environmental Policy Act 

(NEPA) and the Council on 

Environmental Quality (CEQ) 

regulations for implementing NEPA.204

The CEQ regulations allow Federal 

agencies to establish, with CEQ review 

and concurrence, categories of actions 

(‘‘categorical exclusions’’) that 

experience has shown do not have a 

significant effect on the human 

environment and, therefore, do not 


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

206See Appendix A, Table 1. 

207See Instruction Manual section V.B(2)(a) 

through (c). 

208See 5 U.S.C. 601 note. 

209Public Law 105–277, 112 Stat. 2681 (1998). 

require an environmental assessment or 

environmental impact statement.205

The Instruction Manual establishes 

categorical exclusions that DHS has 

found to have no such effect.206 Under 

DHS NEPA implementing procedures, 

for an action to be categorically 

excluded it must satisfy each of the 

following three conditions: (1) The 

entire action clearly fits within one or 

more of the categorical exclusions; (2) 

the action is not a piece of a larger 

action; and (3) no extraordinary 

circumstances exist that create the 

potential for a significant environmental 

effect.207

This rule amends 8 CFR 274a.13(d) to 

temporarily increase the period of time 

that the employment authorization and/ 

or EADs of certain eligible Form I–765 

renewal applicants are automatically 

extended while their renewal 

applications remain pending with 

USCIS. More specifically, this rule 

provides that the automatic extension 

period applicable to expiring EADs for 

certain renewal applicants who have 

filed Form I–765 will be increased from 

up to 180 days to up to 540 days. 

Amending the current rule to increase 

the automatic extension period for 

employment authorization and/or EADs’ 

validity from 180 days to 540 days will 

not result in any meaningful, calculable 

change in environmental effect with 

respect to the number of individuals 

affected by current EAD renewal 

requirements. Furthermore, this rule’s 

amendment will not alter immigration 

eligibility criteria or result in an 

increase in the number of individuals 

who will be eligible for employment 

authorization and/or EADs. Therefore, 

DHS has determined that the temporary 

amendment to 8 CFR 274a.13 clearly fits 

within Categorical Exclusion A3(d) 

contained in the Instruction Manual 

because it amends a regulation without 

changing its environmental effect. 

Furthermore, DHS has determined that 

this rule fits within Categorical 

Exclusion A3(a) contained in the 

Instruction Manual because DHS 

considers temporarily increasing the 

automatic extension period for 

employment authorizations and/or 

EADs for certain renewal applicants to 

be an action of a strictly administrative 

or procedural nature. 

The temporary amendment to 8 CFR 

274a.13 is a standalone action to 

increase an automatic extension period. 

It is not part of a larger action. This 

amendment will not result in any major 

Federal action that will significantly 

impact the human environment. 

Furthermore, USCIS has determined 

that no extraordinary circumstances 

exist that would create the potential for 

significant environmental effects. 

Therefore, this rule amendment is 

categorically excluded from further 

NEPA review. 

I. Family Assessment 

DHS has reviewed this rule in line 

with the requirements of section 654 of 

the Treasury and General Government 

Appropriations Act, 1999,208 enacted as 

part of the Omnibus Consolidated and 

Emergency Supplemental 

Appropriations Act, 1999.209 DHS has 

systematically reviewed the criteria 

specified in section 654(c)(1), by 

evaluating whether this regulatory 

action: (1) Impacts the stability or safety 

of the family, particularly in terms of 

marital commitment; (2) impacts the 

authority of parents in the education, 

nurture, and supervision of their 

children; (3) helps the family perform 

its functions; (4) affects disposable 

income or poverty of families and 

children; (5) only financially impacts 

families, if at all, to the extent such 

impacts are justified; (6) may be carried 

out by State or local government or by 

the family; or (7) establishes a policy 

concerning the relationship between the 

behavior and personal responsibility of 

youth and the norms of society. If the 

agency determines a regulation may 

negatively affect family well-being, then 

the agency must provide an adequate 

rationale for its implementation. 

DHS has determined that the 

implementation of this regulation will 

not negatively affect family well-being 

and will not have any impact on the 

autonomy or integrity of the family as 

an institution. 

J. Paperwork Reduction Act 

This rule does not propose new, or 

revisions to existing, ‘‘collection[s] of 

information’’ as that term is defined 

under the Paperwork Reduction Act of 

1995, Public Law 104–13, 44 U.S.C. 

chapter 35, and its implementing 

regulations, 5 CFR part 1320. As this is 

a TFR that only will increase the 

duration of an automatic extension of 

employment authorization and EAD, 

USCIS does not anticipate a need to 

update the Form I–765 or to collect 

additional information beyond that 

already collected on Form I–765. 

List of Subjects in 8 CFR Part 274a 

Administrative practice and 

procedure, Aliens, Employment, 

Penalties, Reporting and recordkeeping 

requirements. 

Accordingly, for the reasons set forth 

in the preamble, the Secretary of 

Homeland Security amends 8 CFR part 

274a as follows: 

PART 274a CONTROL OF 

EMPLOYMENT OF ALIENS 

■ 1. The authority citation for part 274a 

continues to read as follows: 

Authority: 8 U.S.C. 1101, 1103, 1324a; 48 

U.S.C. 1806; 8 CFR part 2; Pub. L. 101–410, 

104 Stat. 890, as amended by Pub. L. 114– 

74, 129 Stat. 599. 

■ 2. Effective May 4, 2022, through 

October 15, 2025, amend § 274a.13 by 

adding paragraph (d)(5) to read as 

follows: 

§ 274a.13 Application for employment 

authorization. 

* * * * * 

(d) * * * 

(5) Temporary increase in the 

automatic extension period. The 

authorized extension period stated in 

paragraph (d)(1) of this section, 8 CFR 

274a.2(b)(1)(vii), and referred to in 

paragraphs (d)(3) and (4) of this section 

is increased to up to 540 days for all 

eligible classes of aliens as described in 

paragraph (d)(1) who properly filed 

their renewal application on or before 

October 26, 2023. Such automatic 

extension period will automatically 

terminate the earlier of up to 540 days 

after the expiration date of the 

Employment Authorization Document 

(Form I–766, or successor form) or upon 

issuance of notification of a denial on 

the renewal request, even if such date is 

after October 26, 2023. Aliens whose 

automatic extension under paragraph 

(d)(1) expired before May 4, 2022, will 

receive an automatic resumption of 

employment authorization and the 

validity of their Employment 

Authorization Document, as applicable, 

for an additional period beginning from 

May 4, 2022, and up to 540 days from 

the expiration of their employment 

authorization and/or Employment 

Authorization Document as shown on 

the face of such document. An 

Employment Authorization Document 

that has expired on its face is 

considered unexpired when combined 

with a Notice of Action (Form I–797C), 

which demonstrates that the 

requirements of paragraph (d)(1) of this 

section and this paragraph (d)(5) have 

been met, notwithstanding any 

notations on such notice indicating an 

automatic extension of up to 180 days. 


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26652 Federal Register / Vol. 87, No. 86 / Wednesday, May 4, 2022 / Rules and Regulations 

Nothing in this paragraph (d)(5) will 

affect DHS’s ability to otherwise 

terminate any employment 

authorization or Employment 

Authorization Document, or extension 

period for such employment 

authorization or document, by written 

notice to the applicant, by notice to a 

class of aliens published in the Federal 

Register, or as provided by statute or 

regulation, including 8 CFR 274a.14. 

Alejandro N. Mayorkas, 

Secretary, U.S. Department of Homeland 

Security. 

[FR Doc. 2022–09539 Filed 5–3–22; 8:45 am] 

BILLING CODE 9111–97–P 


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