Is USCIS Prioritizing Work Authorization for Many Border Crossers Over Visa Holders?

By Elizabeth Jacobs on August 19, 2022

As a measure to provide greater support to the thousands of Ukrainians and Afghans who have been paroled into the United States, U.S. Citizenship and Immigration Services (USCIS) has announced that certain aliens granted humanitarian parole may now file their employment authorization application (Form I-765) online, rather than using the paper-based application process generally required of most employment authorization applicants. The new online-filing platform is intended to expedite employment authorization processing for Ukrainians and Afghans who are in the United States following the recent Russian attacks on Ukraine and the U.S. withdrawal from Afghanistan, respectively. The administration, however, has been silent on disclosing that the new process may also be available to all border crossers who have been granted humanitarian parole as an alternative to mandatory detention pending their removal proceedings.

All aliens in the United States are required to obtain employment authorization before they can lawfully work in the country. Certain classes of aliens, such as lawful permanent residents or nonimmigrant K-1 visa holders (sometimes called the “fiancé visa”), are automatically authorized to work by virtue of their immigration status, while other classes, such as nonimmigrant F-1 visa holders (students) seeking practical training or asylum applicants, are required to apply for employment authorization with USCIS to obtain authorization. Aliens who file an asylum application at the border, however, are required by law to wait 180 days before becoming eligible to apply for an employment authorization document (EAD).

The statutory waiting period, combined with “last in, first out” processing, is designed to deter aliens from making fraudulent or frivolous asylum claims for the sole purpose of receiving an EAD. A grant of humanitarian parole, however, would allow these aliens to circumvent the statutory waiting period as such individuals with parole become eligible for an EAD under a separate mechanism in law. The new USCIS online platform may allow many to jump the processing queue even further while creating longer wait times for aliens who entered the United States lawfully.

This update comes as the agency is facing historic backlogs for nearly all of its application portfolios, including EAD processing. According to the latest available USCIS data, the processing backlog for EADs stands at more than 1.5 million applications, and the average EAD application processing times for most applicants has more than doubled. For instance, USCIS’s average processing time for EAD applications based on pending adjustment of status petitions increased from three months in FY 2017 to seven months in FY 2022. Processing time for EAD applications based on a pending asylum application increased almost six-fold, from 1.7 months in FY 2017 to 9.7 months in FY 2022. DHS attributes USCIS’s backlog surge to many factors, including policy changes and related spikes in application filings, litigation, operational hurdles caused by the Covid-19 pandemic, and “competing priorities” that have shifted resources away from adjudications.

Furthermore, in response to the agency’s crisis-level backlogs, USCIS published an emergency regulation in May 2022 to avoid “the imminent threat and severe adverse consequences to labor earnings and the financial well-being of applicants and their families”, by automatically extending the validity periods for certain EADs from 180 days to 540 days. According to DHS, the emergency regulation was intended to “avoid the immediate harm” that 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 already-existing 180-day automatic extension. Because of the extreme backlog, USCIS estimated that up to 375,545 eligible renewal applicants would lose their employment authorization and/or EAD validity before the expiration of the existing 180-day automatic extension period and, as a result, their livelihoods, by the end of next year if the 540-day extension regulation was not promulgated immediately.

Despite the crisis-level backlogs facing agency operations, USCIS’s new online platform may permit inadmissible aliens who have illegally entered the United States without inspection to receive their work permits ahead of applicants for many work-eligible visa categories. As my colleague Andrew Arthur has recently reported, court filings have revealed that more than 2.7 million inadmissible aliens have illegally crossed the U.S.-Mexico border since February 2021. Of those 2.7 million, DHS released over 1.05 million inadmissible aliens into the United States, the majority of whom have been granted humanitarian parole as the basis for their release. While the online platform may help USCIS process a larger number of EAD applications and expedite processing for parolees, including for Ukrainians and Afghans, DHS will be simultaneously adding to the population eligible to apply for EADs as long as DHS continues to use humanitarian parole as its primary Band-Aid to address immigration crises.