DHS Extends the Validity Period for Work Authorization Documents for Migrants and Other Categories of Immigrants

Policy change disregards USCIS’s budget and illustrates length of extreme immigration court backlogs

By Elizabeth Jacobs on September 29, 2023

The U.S. Department of Homeland Security (DHS) announced a series of policy changes to address the migration crisis that has affected cities and localities around the country. Most of these updates, however, appear to be focused on alleviating U.S. Citizenship and Immigration Services (USCIS)’s workload and allowing migrants to more quickly enter the labor market despite lacking any lawful immigration status in the United States — rather than add any serious measures to deter additional illegal immigration into the country.

Starting October 1, 2023, DHS says that USCIS will implement expedited processing of Employment Authorization Document (EAD) applications for inadmissible aliens that the Biden administration paroles into the country using its new CBP One app or through one of their new parole programs that are only available to nationals from certain countries. The agency will also begin issuing EADs with five-year (instead of two-year) validity periods.

These changes are designed to allow migrants to gain access to work authorization more quickly, and theoretically, pose less of a strain on state and local budgets by allowing migrants to provide for themselves. USCIS explained that it hopes to reduce the processing times for these applications from 90 days to 30 days (despite records indicating it has actually been taking USCIS closer to 120 days for the majority of applications).

Recently, I wrote about how USCIS has already been prioritizing the processing of parole recipients’ work authorization by creating a new online application system, available only to aliens who have received humanitarian parole. This system was advertised to the public as a measure taken to assist Ukrainian and Afghan parolees settle in the United States in light of USCIS’s historically long backlogs — but it has been generally available to border-crossers and other migrants who have been given parole, without regard to their nationality or individual circumstances.

Most concerning, however, is USCIS’s decision to increase the maximum validity period of initial and renewal EADs to five years for certain aliens, including refugees and asylees, asylum applicants, and withholding of removal recipients. By increasing EAD validity periods, DHS is signaling a couple of important messages. First, the inadmissible migrants who have recently arrived to the United States or will be arriving soon are here to stay for the long term. Prospective migrants will hear this message, too. Never mind that they on paper meet DHS’s narrow enforcement priorities on the basis of “threatening border security”, even if their parole does expire, their EAD may now be valid for an additional few years. One must also pause at the reality that many inadmissible migrants will now be authorized by the Biden administration to work in the United States longer than any congressionally authorized guestworker visa provides.

Second, the policy updates illustrate how long the affirmative asylum and immigration court backlogs really are. It is no secret that the immigration court backlog has skyrocketed as a result of the border crisis (to 1.3 million cases as of August 2023), but the USCIS Ombudsman wrote at length this summer in its 2023 report to Congress about how the Biden administration’s lax immigration policies have caused the affirmative asylum backlog (i.e., claims that are not made as a defense to removal) to surge as well. The Biden administration has been reluctant to share this figure publicly in real time, but as of June 2023, that backlog exceeded 800,000 cases (compared to over 300,000 cases at the end of fiscal year 2020).

But, you may ask, why make USCIS process EAD applications five or six times for an asylum applicant who may be waiting in excess of a decade for their case to be considered when instead, that can be done just twice? Could that help the overall immigration system, which is plagued with historically long processing times for many visa categories? While this change will reduce the need for aliens to submit EAD renewal applications, ultimately taking some work off of USCIS’s plate, it will also cut into USCIS’s ability to collect the fees it needs to keep the agency running.

USCIS is already in a dire financial crisis following the pandemic that has been exacerbated by the Biden administration’s failure to implement an updated fee schedule, its creation of numerous unauthorized parole programs, and its massive expansion of TPS (both of which provide eligibility for work authorization). This is sure to be another paper cut undermining the agency’s overall financial health in addition to attracting more migrants to add to the its bursting humanitarian docket.