The Department of Homeland Security (DHS) issued a final rule last week to permanently increase the automatic extension period for certain employment authorization document (EAD) renewal applicants. This will make it harder for the incoming Trump administration to rescind the benefits given by the Biden administration to millions of inadmissible aliens.
The regulation will increase the automatic extension period of both employment authorization (for aliens who are authorized incident to status) and EADs (for aliens who must apply for work authorization documents) from up to 180 days to up to 540 days from the expiration date stated on expiring Form I-766 if they have a timely filed Form I-765, Application for Employment Authorization.
This is the third time the Biden administration has issued a rule to automatically extend the validity periods of these EADs. The Biden administration’s first two rules (issued in 2022 and earlier in 2024), however, were issued in the form of “temporary final rules,” to address the agency’s operational issues with the inclusion of a near-term expiration date. Neither were permanent regulations.
This most recent rulemaking, however, is a permanent final rule that will stay on the books indefinitely. In order for this new policy to lapse, DHS will have to repeal the regulation by using what is known as formal “notice and comment rulemaking” procedures, as required by the Administrative Procedure Act (APA). Alternatively, Congress has a limited window to repeal the rule using the Congressional Review Act by passing disapproving resolution.
As a result of this rulemaking, the automatic extension will now permanently be available to asylum applicants and grantees; refugees; parents or dependent children of lawful permanent residents (green card holders); aliens who have applied for, and aliens who have been granted, withholding of removal; certain TPS applicants; TPS recipients; spouses of E-1/2/3 nonimmigrant visa holders; spouses of L-1 nonimmigrant visa holders; certain aliens who have filed lawful permanent resident (green card) applications; aliens who have filed applications for suspension of deportation, cancellation of removal, or special rule cancellation of removal; aliens who have filed applications for creation of record of lawful admission for permanent residence; aliens who have filed applications to legalize under section 210 or 245A of the Immigration and Nationality Act (INA); certain alien spouses of H-1B nonimmigrant visa holders; and aliens who are the principal beneficiaries or derivative children of approved VAWA self-petitioners.
This regulatory change was made in addition to the Biden administration’s September 2023 policy change to increase the validity periods for both initial and renewable work authorization for certain EAD categories (including EADs based on a pending asylum application) from two years to five years. This process, unlike other policies that affect the rights and interests of the general public, did not go through the APA’s “notice and comment” rulemaking process. As a result of this policy, many aliens, including many recent illegal border-crossers or parolees who file an asylum application, may be authorized to work in the United States for up to 6.5 years without additional action.
DHS’s stated justification for this policy change was to address USCIS’s inability to keep up with its workload. The agency stated that processing times, for the third time since 2021, “increased to such a level that the 180-day automatic extension for certain pending renewal EAD applications under 8 CFR 274a.13(d) was insufficient to prevent many renewal applicants from experiencing a lapse in employment authorization and/or documentation while their renewal applications remained pending with USCIS”. Most recently, USCIS estimated that if the agency did not automatically extend EAD validity periods, “approximately 800,000 renewal applicants would have been in danger of losing their employment authorization and/or documentation in the period beginning May 2024 and ending March 2026”.
A second reason (not stated publicly, of course) is likely linked to the upcoming change in presidential administrations. Making the rule permanent rather than issued temporarily as-needed will inhibit the incoming Trump administration’s ability to rescind immigration benefits given out as a result of Biden administration policies. These include recent border-crossers who have been paroled into the United States and/or submitted asylum applications, removable aliens benefitting from the expansion of Temporary Protected Status, and inadmissible aliens who have been allowed to fly to the U.S. as a result of one of Biden’s mass parole programs.
These policy changes will also impact the agency’s budget and reduce the amount of revenue USCIS can collect from aliens who must apply for work authorization. USCIS is almost entirely funded by the fees it collects to adjudicate applications and petitions for immigration benefits, including EAD applications.
The agency has endured serious financial challenges since FY 2020, which have resulted in substantial fee increases for nearly all form types across the immigration system, but most drastically in the employment-based categories. The agency’s budget issues are attributed in part to the massive reduction of international travel during the Covid-19 pandemic, but also to the significant expansion of USCIS’s credible fear and humanitarian dockets (and the related expansion of agency personnel to manage these portfolios), policy changes, and significant litigation costs under USCIS Director Ur Jaddou’s leadership.