Temporary Increase of the Automatic Extension Period of Employment Authorization and Documentation for Certain Employment Authorization Document Renewal Applicants, 24628-24676 [2024-07345]

Agencies

• DEPARTMENT OF HOMELAND SECURITY

[Federal Register Volume 89, Number 68 (Monday, April 8, 2024)]
[Rules and Regulations]
[Pages 24628-24676]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-07345]



[[Page 24627]]

Vol. 89

Monday,

No. 68

April 8, 2024

Part III





Department of Homeland Security





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8 CFR Part 274a





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

Federal Register / Vol. 89 , No. 68 / Monday, April 8, 2024 / Rules 
and Regulations

[[Page 24628]]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 274a

[CIS No. 2767-24; DHS Docket No. USCIS-2024-0002]
RIN 1615-AC78


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

AGENCY: U.S. Citizenship and Immigration Services, DHS.

ACTION: Temporary final rule with request for comments.

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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 (EAD application), will 
be increased from up to 180 days to up to 540 days from the expiration 
date stated on their EADs. DHS is taking these steps to help prevent 
renewal applicants from experiencing a lapse in their employment 
authorization and documentation.

DATES: 
    Effective dates: This temporary final rule (TFR) is effective April 
8, 2024, through September 20, 2027, except for the amendments to 8 CFR 
274a.13(d)(5), which are effective from April 8, 2024 through October 
15, 2025.
    Submission of public comments: Comments must be received on or 
before June 7, 2024.

ADDRESSES: You may submit comments on the entirety of this temporary 
final rule package, identified by DHS Docket No. USCIS-2024-0002, 
through the Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the website instructions for submitting comments. The electronic 
Federal Docket Management System will accept comments before midnight 
Eastern time on June 7, 2024.
    Comments must be submitted in English, or an English translation 
must be provided. Comments that will provide the most assistance to 
USCIS in implementing these changes will reference a specific portion 
of the proposed rule, explain the reason for any recommended change, 
and include data, information, or authority that support such 
recommended change. Comments submitted in a manner other than as 
provided above, including emails or letters sent to DHS or U.S. 
Citizenship and Immigration Services (USCIS) officials, will not be 
considered comments on the TFR and may not receive a response from DHS. 
Please note that DHS and 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 also 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: Charles Nimick, Chief, Business and 
Foreign Workers Division, Office of Policy and Strategy, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
5900 Capital Gateway Drive, Camp Springs, MD 20746; telephone 240-721-
3000 (not a toll-free call).

SUPPLEMENTARY INFORMATION: 

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. DHS also invites comments that relate to the economic, 
environmental, or federalism effects that might result from this 
temporary final rule. Comments must be submitted in English, or an 
English translation must be provided. Comments that will provide 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 in this section, including emails or letters sent 
to USCIS or DHS officials, will not be considered comments on the TFR 
and may not receive a response.
    In addition to seeking comments on all aspects of this TFR, DHS 
also invites the public to comment on the following:
     Whether DHS regulations should be revised to permanently 
lengthen the period of the automatic extension period to up to 540 days 
for employment authorization and/or EAD validity for eligible renewal 
applicants;
     Whether a different permanent extension period should be 
implemented, for some or all applicants covered by the automatic 
extension provision on either a temporary or permanent basis; and
     Whether other solutions should be considered to mitigate 
the risk of expiring employment authorization and/or EAD validity for 
some or all applicants covered by the automatic extension provision.
    DHS also specifically seeks comments on the regulatory alternatives 
described in section III.C. and V.B. of this preamble.

Instructions

    All submissions should include the agency name and DHS Docket No. 
USCIS-2024-0002 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 and 
Security 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-2024-
0002. You may also sign up for email alerts on the online docket to be 
notified when comments are posted or a subsequent rulemaking is 
published.

I. Executive Summary

A. Purpose and Summary of the Regulatory Action

    DHS has determined that the up to 180-day automatic extension under 
8 CFR 274a.13(d) is currently not enough time for the growing number of 
renewal EAD applicants. Without this TFR, approximately 800,000 renewal 
EAD applicants will be in danger of having their applications remain 
pending beyond the 180-day automatic extension period, resulting in 
applicants losing employment authorization and/or EAD validity in the 
approximately 2-year period beginning May 2024 because of USCIS 
processing delays and through no fault of their own. Such widescale 
lapses in employment authorization and EAD validity would result in 
substantial and unnecessary harm to noncitizens

[[Page 24629]]

who timely filed for extensions of employment authorization, their 
families, their employers, and the public at large. To avert these gaps 
in employment authorization and/or EAD validity for certain renewal EAD 
applicants, and the resulting harmful effects gaps can cause, DHS is 
temporarily amending existing DHS regulations to increase the automatic 
extension period applicable to expiring employment authorization and/or 
EADs (Form I-766) for certain renewal applicants who have filed EAD 
applications from up to 180 days to up to 540 days from the expiration 
date stated on their EADs. The increase will be available to any 
eligible renewal EAD applicant with an application filed on or after 
October 27, 2023, and pending on or after April 8, 2024 and any 
eligible applicant who files a renewal EAD application during the 540-
day period beginning on or after April 8, 2024 and ending September 30, 
2025. DHS has decided to focus on near-term uncertainty and critical 
needs of applicants, their families, and their employers by ensuring 
that, through this TFR, none of them will imminently or in the near-
term experience the harmful effects caused by gaps in employment 
authorization and/or EAD validity due to processing delays. At the same 
time, this rule provides DHS with an additional window during which it 
can consider long-term solutions by soliciting public comments, 
evaluating the effects of ongoing and future policy and operational 
changes described throughout this rule, and continuing to identify new 
strategies and efficiencies.

B. Summary of Legal Authority

    The authority for the Secretary of Homeland Security (Secretary) to 
issue this TFR is found in section 274A(h)(3)(B) of the INA, 8 U.S.C. 
1324a(h)(3)(B), which recognizes the Secretary's authority to extend 
employment authorization to noncitizens in the United States, and 
section 101(b)(1)(F) of the Homeland Security Act (HSA), 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.'' Under section 103(a) of the INA, 8 U.S.C. 1103(a), the 
Secretary is authorized to administer the immigration and nationality 
laws and establish such regulations as the Secretary deems necessary 
for carrying out such authority.

C. Summary of the TFR Provisions

    This rule amends 8 CFR 274a.13(d) as follows:
     New 8 CFR 274a.13(d)(6): DHS is adding a new paragraph 8 
CFR 274a.13(d)(6). With this new paragraph, DHS is temporarily 
increasing the regular automatic extension period for employment 
authorization and/or EAD validity of up to 180 days under 8 CFR 
274a.13(d)(1) to a period of up to 540 days for renewal applicants 
eligible to receive an automatic extension.
     Amending existing 8 CFR 274a.13(d)(5): To avoid confusion 
between the automatic extension period granted under new 8 CFR 
274a.13(d)(6) and existing 8 CFR 274a.13(d)(5), DHS is revising the 
heading of existing 8 CFR 274a.13(d)(5). 8 CFR 274a.13(d)(5) only 
applies to EAD renewal applications properly filed on or before October 
26, 2023. The new heading will clearly reflect the date. DHS is neither 
extending nor otherwise amending 8 CFR 274a.13(d)(5).

D. Summary of Costs and Benefits

    This rule results in stabilization of earnings worth $29.1 billion 
to employment-authorized immigrants, cost savings of $5.2 billion to 
U.S. employers from avoided labor turnover, and is expected to yield 
$3.1 billion in employment tax transfer payments over a 5-year period 
of analysis using a 2 percent discounting rate (see Table 13 for more 
information). While the EAD end dates are known to USCIS and can be 
used to accurately project lapses, there is uncertainty around the 
monetized, economic impacts due to the timing of EAD renewal filing 
behavior and the resulting duration of lapses experienced by workers of 
varying wages in the absence of this rule. The Regulatory Impact 
Analysis discusses the low end and high end estimates that bound the 
expected impacts of this regulatory action.

II. Background

    USCIS' ability to process both initial and renewal EAD applications 
within USCIS' targeted processing times has been adversely impacted by 
a variety of unforeseeable and dynamic events and circumstances, 
described in the following sections. As a result, DHS has found it 
necessary to take actions to reduce the likelihood that certain 
applicants for renewal EADs experience unnecessary lapses in their 
employment authorization and/or proof of employment authorization 
because of USCIS processing delays and through no fault of their own. 
Such widescale lapses in employment authorization and EAD validity 
would result in substantial and unnecessary harm to noncitizens who 
timely filed for extensions of employment authorization, their 
families, their employers, and the public at large.
    In 2021, a surge in EAD applications, coupled with operational 
challenges exacerbated by the COVID-19 pandemic, resulted in a 
significant increase in EAD application processing times. The EAD 
application processing times increased to such a level that the 180-day 
automatic extension of employment authorization for certain pending 
renewal EAD applications \1\ 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.
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    \1\ See 8 CFR 274a.13(d).
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    In May 2022, DHS published a temporary final rule (``2022 TFR'') 
that, for certain renewal EAD applications filed during a limited 
period that ended on October 26, 2023, increased the automatic 
extension period from up to 180 days to up to 540 days.\2\ This measure 
helped minimize gaps in employment authorization and/or EAD validity 
for certain renewal EAD applicants, while giving USCIS a window of time 
to address its backlogs through operational and sub-regulatory 
measures. Those operational and sub-regulatory measures helped USCIS to 
work toward its goal of returning to regular processing times.
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    \2\ See 87 FR 26614 (May 4, 2022) (2022 TFR).
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    Although USCIS' efforts since the issuance of the 2022 TFR 
prevented a substantial number of renewal applicants from experiencing 
a lapse in their employment authorization and/or documentation, the 
processing times for renewal EAD applications are currently at such a 
level that the current 180-day automatic extension period for certain 
renewal EAD applications remains insufficient to prevent a large number 
of lapses in the coming months.
    Accordingly, DHS is again taking steps to help prevent certain 
renewal EAD applicants from experiencing a lapse in their employment 
authorization, valid documentation of their employment authorization, 
or both, while their renewal applications remain pending. USCIS also 
continues to implement other solutions to return processing times to 
target levels, as detailed in section III.B of the preamble.
    Without this 2024 TFR, approximately 800,000 renewal applicants 
will be in danger of losing their employment authorization and/or

[[Page 24630]]

documentation in the period beginning May 2024 and ending March 
2026.\3\ If faced with a disruption of their employment authorization 
and/or documentation, these renewal applicants may lose their jobs 
through no fault of their own, and employers may be faced with finding 
replacement workers, an undue burden that is exacerbated during a time 
when the U.S. economy is experiencing more job openings than available 
workers.\4\
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    \3\ See section V.B.2. Table 7, TFR Future Population 
Projections by Month, Rounded to Thousands.
    \4\ Bureau of Labor Statistics data show that, as of December 
2023, there were 0.7 unemployed persons per job opening. See U.S. 
Department of Labor, U.S. Bureau of Labor Statistics, ``Number of 
unemployed persons per job opening, seasonally adjusted,'' https://www.bls.gov/charts/job-openings-and-labor-turnover/unemp-per-job-opening.htm (last visited Feb. 6, 2024).
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    Therefore, DHS has determined that it is imperative to increase the 
automatic extension period of employment authorization and/or EAD 
validity for eligible renewal EAD applicants for a temporary period. 
This temporary increase to the automatic extension period will be 
effective April 8, 2024 and will apply to renewal EAD applications that 
are properly filed on or after October 27, 2023,\5\ and on or before 
September 30, 2025.
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    \5\ The 2022 TFR increased the automatic extension period from 
up to 180 days to up to 540 days for certain renewal EAD 
applications filed on or after May 4, 2022, and on or before October 
26, 2023. Beginning on October 27, 2023, the automatic extension 
period reverted to the original 180-day period for those eligible 
applicants who timely file Form I-765 renewal applications. For 
individuals who received an increased automatic extension under the 
2022 TFR, the automatic extension generally will end when they 
receive a final decision on their renewal application or the end of 
the up to 540-day period, whichever comes earlier.
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    This new temporary increase to the automatic extension period will, 
in most cases, help avoid the gaps in employment authorization and/or 
documentation that could otherwise affect eligible renewal EAD 
applicants, their families, and their U.S. employers in those cases 
where USCIS is unable to process their renewal applications within the 
180-day automatic extension period provided under the current 
regulation.

A. Legal Authority

    The Secretary of Homeland Security's (Secretary) authority for the 
regulatory amendments made in this TFR are found in various sections of 
the Immigration and Nationality Act (INA or the Act), 8 U.S.C. 1101 et 
seq., and the Homeland Security Act of 2002 (HSA), Public Law 107-296, 
116 Stat. 2135 (codified in part at 6 U.S.C. 101 et seq.). General 
authority for issuing this TFR is found in section 103(a) of the INA, 8 
U.S.C. 1103(a), which authorizes the Secretary to administer and 
enforce the immigration and nationality laws and establish such 
regulations as the Secretary deems necessary for carrying out such 
authority, as well as section 102 of the HSA, 6 U.S.C. 112, which vests 
all of the functions of DHS in the Secretary and authorizes the 
Secretary to issue regulations.\6\ Further authority for this TFR is 
found in:
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    \6\ Although several provisions of the INA discussed in this TFR 
refer exclusively to the ``Attorney General,'' such provisions are 
now to be read as referring to the Secretary of Homeland Security by 
operation of the HSA. See 6 U.S.C. 202(3), 251, 271(b), 542 note, 
557; 8 U.S.C. 1103(a)(1) and (g), 1551 note; Nielsen v. Preap, 139 
S. Ct. 954, 959 n.2 (2019).
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     Section 208(d)(2) of the INA, 8 U.S.C. 1158(d)(2), which 
authorizes the Secretary to grant employment authorization to 
applicants for asylum if 180 days have passed since filing an 
application for asylum;
     Section 214 of the INA, 8 U.S.C. 1184, including section 
214(a)(1) of the INA, 8 U.S.C. 1184(a)(1), which authorizes the 
Secretary to prescribe, by regulation, the time and conditions of the 
admission of nonimmigrants;
     Section 244(a)(1)(B) of the INA, 8 U.S.C. 1254a(a)(1)(B), 
which states that the Secretary shall authorize employment and provide 
evidence of employment authorization for noncitizens who have been 
granted Temporary Protected Status;
     Section 274A(h)(3)(B) of the INA, 8 U.S.C. 1324a(h)(3)(B), 
which recognizes the Secretary's authority to extend employment 
authorization to noncitizens in the United States; 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.''

B. Legal Framework for Employment Authorization

1. Types of Employment Authorization: 8 CFR 274a.12(a), (b), and (c)
    Whether a noncitizen is authorized to work in the United States 
depends on the noncitizen's immigration status or other conditions that 
may permit employment authorization (for example, having a pending 
application for asylum or a grant of deferred action). DHS regulations 
outline three classes of noncitizens who may be eligible for employment 
in the United States, as follows:\7\
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    \7\ There are several employment-eligible categories that are 
not included in DHS regulations, but instead are described in the 
form instructions to Form I-765, Application for Employment 
Authorization (EAD application). Employment-authorized L 
nonimmigrant spouses are an example. See INA sec. 214(c)(2)(E), 8 
U.S.C. 1184(c)(2)(E).
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     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. This means that for certain 
eligible noncitizens, employment authorization is granted with the 
underlying immigration status (called ``incident to status'' employment 
authorization). Although authorized to work as a condition of their 
status or circumstances, certain classes of noncitizens must apply to 
USCIS in order to receive a Form I-766 EAD as evidence of that 
employment authorization.\8\
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    \8\ See 8 CFR 274a.12(a).
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     Noncitizens in the second class, described at 8 CFR 
274a.12(b), also are authorized to work ``incident to status'' as a 
condition of their immigration status or circumstances, but generally 
the authorization is valid only with a specific employer.\9\ 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.
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    \9\ See 8 CFR 274a.12(b).
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     Noncitizens in the third class, described at 8 CFR 
274a.12(c), are required to apply for employment authorization and may 
work only if USCIS, in its discretion, approves their application. They 
are authorized to work for any employer or engage in self-employment 
upon approval of their EAD application, subject to certain 
restrictions, so long as their EAD remains valid.\10\
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    \10\ See 8 CFR 274a.12(c); Matter of Tong, 16 I&N Dec. 593, 595 
(BIA 1978) (holding that the term ```employment' is a common one, 
generally used with relation to the most common pursuits,'' and 
includes ``the act of being employed for one's self'').
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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 EAD application must be properly filed with USCIS 
(with fee

[[Page 24631]]

or fee waiver, as applicable) to receive employment authorization and/
or an EAD.\11\ EADs issued under 8 CFR 274a.12(a) or (c) generally 
allow these noncitizens to work for any U.S. employer or engage in 
self-employment, subject to certain restrictions, as applicable. If an 
EAD application is granted under CFR 274a.12(a), the resultant EAD 
provides the noncitizen with proof of employment authorization incident 
to status or circumstance. Certain noncitizens may file EAD 
applications concurrently with related benefit requests if permitted by 
the form instructions or as announced by USCIS.\12\ In such instances, 
the underlying benefit requests, if granted, would form the basis for 
an EAD or eligibility to apply for employment authorization. For 
eligibility categories listed in 8 CFR 274a.12(a) and (c), USCIS has 
the discretion to establish a specific validity period for the EAD.\13\
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    \11\ See 8 CFR 103.2(a) and 8 CFR 274a.13(a). An applicant who 
is employment authorized incident to status (e.g., asylees, 
refugees, TPS beneficiaries) may file an EAD application to request 
an EAD. Applicants who are filing within an eligibility category 
listed in 8 CFR 274a.12(c) must, by contrast, use the EAD 
application form to request both employment authorization and an 
EAD.
    \12\ See 8 CFR 274a.13(a). For example, the spouse of an H-1B 
worker may file an EAD application at the same time as their Form I-
539, Application to Extend/Change Nonimmigrant Status. See USCIS, 
DHS, ``Employment Authorization for Certain H-4, E Dependent 
Spouses,'' https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/employment-authorization-for-certain-h-4-dependent-spouses (last 
visited Dec. 4, 2023).
    \13\ See 8 CFR 274.12(a) and (c).
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3. Automatic Extensions of EADs for Renewal Applicants: 8 CFR 
274a.13(d)
a. Renewing Employment Authorization and/or EADs
    Employment authorization and EADs generally are not valid 
indefinitely but instead expire after a specified period of time.\14\ 
Generally, noncitizens within the eligibility categories listed in 8 
CFR 274a.12(c) must obtain a renewal of employment authorization and 
their EADs before the expiration date stated on their current EADs, or 
they will lose their eligibility to work in the United States (unless, 
since obtaining their current EADs, the noncitizens have obtained an 
immigration status or belong to a class of individuals with employment 
authorization incident to that status or class, or obtain employment 
authorization based on another category).\15\ The same holds true for 
some classes of noncitizens authorized to work incident to status whose 
EAD expiration dates coincide with the termination or expiration of 
their underlying immigration status. Other noncitizens authorized to 
work incident to status, such as asylees, refugees, and 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 noncitizens may wish to 
renew their EAD to have acceptable evidence of their continuous 
employment authorization for various purposes, such as presenting 
evidence of employment authorization and identity to their employers 
for completion of the Employment Eligibility Verification (Form I-9) 
process. Failure to renew their EADs prior to the expiration date may 
result in job loss if such noncitizens do not have or cannot present 
alternate acceptable evidence of employment authorization to show their 
employers, as employers who continue to employ noncitizens without 
employment authorization may be subject to criminal penalties and/or 
civil monetary penalties.\16\
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    \14\ See 8 CFR 274a.13(b). But see 8 CFR 274a.14 (setting forth 
the bases for termination or revocation of employment 
authorization).
    \15\ See 8 CFR 274a.14(a)(1)(i).
    \16\ The employee must present the employer with acceptable 
documents evidencing identity and employment authorization. The 
lists of acceptable documents can be found on the second page of the 
Form I-9. See USCIS, DHS, Form I-9, ``Employment Eligibility 
Verification,'' https://www.uscis.gov/sites/default/files/document/forms/i-9.pdf (last visited Feb. 7, 2024). An employer that does not 
properly complete Form I-9, which includes reverifying continued 
employment authorization, or continues to employ an individual with 
knowledge that the individual is not authorized to work, may be 
subject to civil money penalties. See USCIS, DHS, ``M-274 Handbook 
for Employers,'' ``11.8 Penalties for Prohibited Practices,'' 
https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274/110-unlawful-discrimination-and-penalties-for-prohibited-practices/118-penalties-for-prohibited-practices (last 
visited Feb. 7, 2024). In addition, an employer who engages in a 
``pattern or practice'' of employing unauthorized individuals may 
face criminal penalties under 8 U.S.C. 1324a(f). U.S. Immigration 
and Customs Enforcement has primary enforcement responsibilities for 
enforcement of the civil monetary penalties under Section 274A of 
the INA, 8 U.S.C. 1324a and Section 274C of the INA, 8 U.S.C. 1324c.
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    Those seeking to renew previously granted employment authorization 
or EADs must file renewal EAD applications with USCIS in accordance 
with the form instructions.\17\
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    \17\ See USCIS, DHS, Form I-765, ``Instructions for Application 
for Employment Authorization,'' https://www.uscis.gov/sites/default/files/document/forms/i-765instr.pdf (last visited Feb. 7, 2024). In 
reviewing the EAD application, USCIS ensures that the fee was paid, 
a fee waiver was granted, or a fee exemption applies.
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b. Minimizing the Risk of Gaps in Employment Authorization and/or EAD 
Validity Through Automatic Extensions
    If an eligible noncitizen is not able to obtain renewal of their 
employment authorization and/or EAD before it expires, the noncitizen 
and the employer could experience adverse consequences. For the 
noncitizen, the lack of renewal could cause job loss, gaps in 
employment authorization and/or documentation, and loss of income. For 
the noncitizen's employer, the disruption may cause instability with 
business continuity or other financial harm. Beyond the financial and 
economic impact that gaps in employment authorization or proof thereof 
create for the noncitizen and the employer, if the noncitizen engages 
in unauthorized employment, such activity may render a noncitizen 
removable,\18\ render a noncitizen ineligible for future benefits such 
as adjustment of status,\19\ and/or subject the employer to civil and/
or criminal penalties.\20\
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    \18\ See, e.g., INA sec. 237(a)(1)(C), 8 U.S.C. 1227(a)(1)(C); 8 
CFR 214.1(e).
    \19\ See INA sec. 245(c), (k); 8 U.S.C. 1255(c), (k).
    \20\ See INA sec. 274A, 8 U.S.C. 1324a.
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    Before 2016, DHS regulations stated that USCIS would ``adjudicate 
an application [for an EAD] within 90 days'' from the date USCIS 
received the application.\21\ If USCIS did not adjudicate the 
application within that timeframe, the applicant was eligible for an 
interim document evidencing employment authorization with a validity 
period not to exceed 240 days. On November 18, 2016, as part of DHS's 
efforts to implement the flexibilities provided to noncitizens and 
employers by the American Competitiveness in the Twenty-first Century 
Act of 2000 (AC21), as amended, and the American Competitiveness and 
Workforce Improvement Act of 1998, DHS published a final regulation 
\22\ removing the provision and replacing it with the current 8 CFR 
274a.13(d).
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    \21\ See 8 CFR 274a.13(d) (2016).
    \22\ See 81 FR 82398 (Nov. 18, 2016) (``AC21 Final Rule''). The 
final rule was issued after a proposed rule was published in the 
Federal Register. See 80 FR 81899 (Dec. 31, 2015) (``AC21 NPRM'').
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    To prevent gaps in employment authorization and/or documentation 
and related consequences for certain renewal applicants,\23\ and in 
light of processing times and possible filing

[[Page 24632]]

surges,\24\ DHS changed its regulations at 8 CFR 274a.13(d) such that 
under the current provision, and except as otherwise provided by law, 
certain categories of renewal applicants receive an automatic extension 
of their EADs (and, if applicable, related employment authorization) 
for up to 180 days from the expiration date on the EAD.\25\ To receive 
the automatic extension, an eligible renewal applicant must meet the 
following conditions:
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    \23\ See 80 FR 81899, 81927 (Dec. 31, 2015) (``DHS proposes to 
amend its regulations to help prevent gaps in employment 
authorization for certain employment-authorized individuals who are 
seeking to renew expiring EADs. . . . These provisions would 
significantly mitigate the risk of gaps in employment authorization 
and required documentation for eligible individuals, thereby 
benefitting them and their employers.'').
    \24\ See 80 FR 81899, 81927 (Dec. 31, 2015) (``DHS believes that 
this time period [of up to 180 days] is reasonable and provides more 
than ample time for USCIS to complete the adjudication process based 
on USCIS' current 3-month average processing time for Applications 
for Employment Authorization.''); 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).'').
    \25\ 8 CFR 274a.13(d); see also 81 FR 82398, 82455-82463 (Nov. 
18, 2016) (AC21 Final Rule).
---------------------------------------------------------------------------

     The renewal applicant timely files an application to renew 
the employment authorization and/or EAD before the EAD expires; \26\
---------------------------------------------------------------------------

    \26\ 8 CFR 274a.13(d)(1)(i). TPS beneficiaries must file during 
the designated period in the applicable Federal Register notice.
---------------------------------------------------------------------------

     The renewal EAD application 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); \27\ and
---------------------------------------------------------------------------

    \27\ See 8 CFR 274a.13(d)(1)(ii) (exempting individuals approved 
for TPS with EADs issued pursuant to 8 CFR 274a.12(c)(19) from the 
requirement that the employment authorization category on the face 
of the expiring EAD be the same as on the EAD renewal application).
---------------------------------------------------------------------------

     The renewal applicant's eligibility to apply for 
employment authorization continues notwithstanding the expiration of 
the EAD and is based on an employment authorization category that does 
not require the adjudication of an underlying application or petition 
before the adjudication of the renewal application, as may be announced 
on the USCIS website.\28\
---------------------------------------------------------------------------

    \28\ See 8 CFR 274a.13(d)(1)(iii).
---------------------------------------------------------------------------

    The following classes of noncitizens filing to renew an EAD may be 
eligible to receive an automatic extension of their employment 
authorization and/or EAD for up to 180 days: \29\
---------------------------------------------------------------------------

    \29\ See USCIS, DHS, ``Automatic Employment Authorization (EAD) 
Extension,'' https://www.uscis.gov/working-in-the-united-states/information-for-employers-and-employees/automatic-employment-authorization-document-ead-extension (last visited Feb. 7, 2023).
---------------------------------------------------------------------------

     Noncitizens admitted as refugees (A03); \30\
---------------------------------------------------------------------------

    \30\ See 8 CFR 274a.12(a)(3).
---------------------------------------------------------------------------

     Noncitizens granted asylum (A05); \31\
---------------------------------------------------------------------------

    \31\ See 8 CFR 274a.12(a)(5).
---------------------------------------------------------------------------

     Noncitizens admitted as parents or dependent children of 
noncitizens granted permanent residence under section 101(a)(27)(I) of 
the INA, 8 U.S.C. 1101(a)(27)(I) (A07); \32\
---------------------------------------------------------------------------

    \32\ See 8 CFR 274a.12(a)(7).
---------------------------------------------------------------------------

     Noncitizens admitted to the United States as citizens of 
the Federated States of Micronesia, the Republic of the Marshall 
Islands, or the Republic of Palau pursuant to agreements between the 
United States and the former trust territories (A08); \33\
---------------------------------------------------------------------------

    \33\ See 8 CFR 274a.12(a)(8).
---------------------------------------------------------------------------

     Noncitizens granted withholding of deportation or removal 
(A10); \34\
---------------------------------------------------------------------------

    \34\ See 8 CFR 274a.12(a)(10).
---------------------------------------------------------------------------

     Noncitizens granted TPS, regardless of the employment 
authorization category on their current EADs (A12); \35\
---------------------------------------------------------------------------

    \35\ See 8 CFR 274a.12(a)(12) or (c)(19).
---------------------------------------------------------------------------

     Noncitizen spouses of E-1/2/3 nonimmigrants (Treaty 
Trader/Investor/Australian Specialty Worker) (A17); \36\
---------------------------------------------------------------------------

    \36\ See INA sec. 214(e)(2), 8 U.S.C. 1184(e)(2).
---------------------------------------------------------------------------

     Noncitizen spouses of L-1 nonimmigrants (Intracompany 
Transferees) (A18); \37\
---------------------------------------------------------------------------

    \37\ See INA sec. 214(c)(2)(E), 8 U.S.C. 1184(c)(2)(E).
---------------------------------------------------------------------------

     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); \38\
---------------------------------------------------------------------------

    \38\ See 8 CFR 274a.12(c)(19).
---------------------------------------------------------------------------

     Noncitizens who have properly filed applications for 
asylum and withholding of deportation or removal (C08); \39\
---------------------------------------------------------------------------

    \39\ See 8 CFR 274a.12(c)(8).
---------------------------------------------------------------------------

     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); \40\
---------------------------------------------------------------------------

    \40\ See 8 CFR 274a.12(c)(9). In certain adjustment of status 
cases, if the applicant seeks an EAD and advance parole (by filing 
Form I-131, Application for Travel Document), USCIS may issue an 
employment authorization card combined with an Advance Parole Card 
(Form I-512). This is also referred to as a ``combo card.'' If the 
EAD card is combined with the advance parole authorization (the EAD 
card has an annotation ``SERVES AS I-512 ADVANCE PAROLE''), any 
automatic extension does not apply to the advance parole part of the 
combo card.
---------------------------------------------------------------------------

     Noncitizens who have filed applications for suspension of 
deportation under section 244 of the INA (as it existed prior to April 
1, 1997), cancellation of removal pursuant to section 240A of the INA, 
or special rule cancellation of removal under section 309(f)(1) of the 
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 
(C10); \41\
---------------------------------------------------------------------------

    \41\ See 8 CFR 274a.12(c)(10).
---------------------------------------------------------------------------

     Noncitizens who have filed applications for creation of 
record of lawful admission for permanent residence (C16); \42\
---------------------------------------------------------------------------

    \42\ See 8 CFR 274a.12(c)(16).
---------------------------------------------------------------------------

     Noncitizens who have properly filed legalization 
applications pursuant to section 210 of the INA, 8 U.S.C. 1160 (C20); 
\43\
---------------------------------------------------------------------------

    \43\ See 8 CFR 274a.12(c)(20).
---------------------------------------------------------------------------

     Noncitizens who have properly filed legalization 
applications pursuant to section 245A of the INA, 8 U.S.C. 1255a (C22); 
\44\
---------------------------------------------------------------------------

    \44\ See 8 CFR 274a.12(c)(22).
---------------------------------------------------------------------------

     Noncitizens who have filed applications for adjustment of 
status pursuant to section 1104 of the Legal Immigration Family Equity 
Act (C24); \45\
---------------------------------------------------------------------------

    \45\ See 8 CFR 274a.12(c)(24).
---------------------------------------------------------------------------

     Certain noncitizen spouses (H-4) of H-1B nonimmigrants 
with an unexpired Form I-94 showing H-4 nonimmigrant status (C26); \46\ 
and
---------------------------------------------------------------------------

    \46\ See 8 CFR 274a.12(c)(26).
---------------------------------------------------------------------------

     Noncitizens who are the principal beneficiaries or 
derivative children of approved Violence Against Women Act (VAWA) self-
petitioners,\47\ under the employment authorization category 
``(c)(31)'' in the form instructions to the EAD application (C31).\48\
---------------------------------------------------------------------------

    \47\ Family based immigration generally requires U.S. citizens 
and lawful permanent residents to file a petition on behalf of their 
noncitizen family members. Some petitioners may misuse this process 
to further abuse their noncitizen family members by threatening to 
withhold or withdraw sponsorship in order to control, coerce, and 
intimidate them. With the passage of VAWA and its subsequent 
reauthorizations, Congress provided noncitizens who have been abused 
by their U.S. citizen or lawful permanent resident relative the 
ability to petition for themselves (self-petition) without the 
abuser's knowledge, consent, or participation in the process. The 
VAWA provisions allow victims to seek both safety and independence 
from their abusers.
    \48\ INA sec. 204(a)(1)(D)(i)(II), (IV), (a)(1)(K), 8 U.S.C. 
1154(a)(1)(D)(i)(II), (IV), (a)(1)(K).
---------------------------------------------------------------------------

    The extension automatically terminates the earlier of up to 180 
days after the expiration date of the EAD, or upon issuance of 
notification of a decision denying the renewal request.\49\ An EAD that 
is expired on its face is considered unexpired when combined with a 
Form I-797C receipt notice indicating a timely filing of the 
application to renew the EAD.\50\ 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 may present to their employer 
the Form I-797C receipt notice for the EAD application to show that 
their EAD has been automatically extended as evidence of continued 
employment authorization, and the employer must

[[Page 24633]]

update the previously completed Form I-9 to reflect the extended EAD 
expiration date based on the automatic extension while the renewal is 
pending. For new employment, the automatic extension date is recorded 
on the Form I-9 by the employee and the employer in the first instance. 
In either case, the reverification of employment authorization or the 
EAD occurs when the automatic extension period terminates.\51\
---------------------------------------------------------------------------

    \49\ See 8 CFR 274a.13(d)(3).
    \50\ See 8 CFR 274a.13(d)(4).
    \51\ See USCIS, DHS, ``Completing Supplement B, Reverification 
and Rehires (formerly Section 3),'' https://www.uscis.gov/i-9-central/complete-correct-form-i-9/completing-supplement-b-reverification-and-rehires-formerly-section-3 (last visited Nov. 3, 
2023); see also USCIS, DHS, ``M-274 Handbook for Employers,'' ``5.2 
Temporary Increase of Automatic Extension of EADs from 180 Days to 
540 Days'' (last visited Dec. 7, 2023).
---------------------------------------------------------------------------

    USCIS generally recommends the filing of a renewal EAD application 
up to 180 days before the current EAD expires.\52\ 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 automatically extended employment 
authorization and/or EAD generally is terminated on the day of the 
denial.\53\ If the renewal application was timely and properly filed, 
but remains pending beyond the 180-day automatic extension period, the 
applicant must stop working upon the expiration of the automatically 
extended validity period and the employer must remove the employee from 
the payroll if the applicant/employee cannot provide other acceptable 
evidence of current employment authorization.\54\ As a result, both the 
employee and the employer may 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.
---------------------------------------------------------------------------

    \52\ See USCIS, DHS, ``I-765, Application for Employment 
Authorization,'' https://www.uscis.gov/i-765 (last visited Jan. 19, 
2024); USCIS, DHS, ``Employment Authorization Document,'' https://www.uscis.gov/green-card/green-card-processes-and-procedures/employment-authorization-document (last visited Dec. 7, 2023); see 
also 81 FR at 82456 (``AC21 Final Rule'').
    \53\ See 8 CFR 274a.13(d)(3).
    \54\ See 8 CFR 274a.2(b)(vii) (reverification provision).
---------------------------------------------------------------------------

C. 2022 Temporary Final Rule

1. Overview
    In 2022, processing times for EAD applications had increased due to 
operational challenges that were exacerbated by the emergency measures 
USCIS employed to maintain its operations through the height of the 
COVID-19 pandemic in 2020, combined with a sudden increase in EAD 
application filings. The up to 180-day automatic extension period for 
renewal EAD applicants' employment authorization and/or EADs was no 
longer sufficient to prevent lapses in employment authorization for 
these applicants.
    To mitigate the impact of these operational challenges, on May 4, 
2022, DHS published a TFR titled ``Temporary Increase of the Automatic 
Extension Period of Employment Authorization and Documentation for 
Certain Renewal Applicants'' (2022 TFR) in the Federal Register.\55\ 
The rule temporarily amended DHS regulations at 8 CFR 274a.13(d) by 
adding a new paragraph 8 CFR 274a.13(d)(5), which lengthened the 
automatic extension period provided in that section from up to 180 days 
to up to 540 days for those categories described in the TFR, upon 
timely filing of an EAD renewal application.\56\ That increase was 
available to eligible renewal applicants whose EAD applications were 
pending as of May 4, 2022, including those applicants whose employment 
authorization had already lapsed following the initial 180-day 
extension period, and to eligible applicants who filed a renewal EAD 
application during the 540-day period beginning on or after May 4, 
2022, and ending October 26, 2023.\57\ On October 27, 2023, the 
automatic extension renewal period reverted to 180 days (the automatic 
extension period under 8 CFR 274a.13(d)(1)) for eligible renewal EAD 
applications filed on or after October 27, 2023.\58\
---------------------------------------------------------------------------

    \55\ 87 FR 26614 (May 4, 2022).
    \56\ See 8 CFR 274a.13(d); see also 87 FR 26614, 26651 (May 4, 
2022).
    \57\ See id.
    \58\ See 87 FR 26614, 26631 (May 4, 2022).
---------------------------------------------------------------------------

2. Public Comments
    In promulgating the 2022 TFR, DHS invited the public to participate 
in the rulemaking by submitting comments and written data. In response 
to the request for comments, the Department received a total of 190 
public comment submissions. Of the 190 submissions, 117 are unique 
submissions, 61 are copies of form letters associated with mass mail 
campaigns, 6 are duplicate submissions, and 6 are not germane to the 
2022 TFR.\59\
---------------------------------------------------------------------------

    \59\ The agency has not previously responded to the public 
comments received from the 2022 TFR.
---------------------------------------------------------------------------

    Of the comments listed above, one submission expressed opposition, 
94 submissions expressed support, and 83 expressed a mixed opinion 
(e.g., general support with a request for further changes). Many 
expressed their appreciation for the rule and commented on the positive 
impacts the rule had not only on applicants, their families, and their 
support systems, but also on employers and the economy. Many who 
supported the rule overall also expressed that DHS should have applied 
the rule more broadly by expanding certain aspects of the rule (e.g., 
to cover all classes of noncitizens) or requested revisions to the rule 
(e.g., that the effective period of the rule be longer, or that it be 
issued as a final rule that would make the increased extension 
permanent, not temporary). A comment submitted by an advocacy group 
noted that USCIS should make permanent the 540-day automatic extension 
because it was unlikely that USCIS would fully eliminate USCIS' backlog 
owing to circumstances beyond USCIS' control, including a lack of 
funding and adequate staffing. The group added that USCIS could publish 
a final rule to make the 540-day automatic extension period permanent 
as an appropriate exercise of USCIS' rulemaking authority under the 
Administrative Procedure Act (APA) because USCIS requested comments in 
connection with the 2022 TFR.\60\ Another advocacy group noted that 
making permanent the automatic extension period of 540 days would be 
more efficient and promote predictability. Some commenters suggested 
that DHS consider alternative regulatory or sub-regulatory actions. 
Some addressed other concerns, including clarity, outreach, and 
coordination with other departments.
---------------------------------------------------------------------------

    \60\ The group cited Little Sisters of the Poor Saints Peter & 
Paul Home v. Pennsylvania, 140 S.Ct. 2367, 2384-85 (2020) (holding 
that an interim final rule's ``request for comments readily 
satisfied the APA notice requirements.'').
---------------------------------------------------------------------------

    While DHS reviewed and considered the comments submitted in 
response to the 2022 TFR, DHS did not make changes to the 2022 TFR in 
response to the comments because DHS considered the rulemaking to be 
sufficient at that time to address the issues facing the affected 
population of renewal EAD applicants and their U.S. employers. DHS also 
considered some comments, such as commenters' suggestions to eliminate 
employment authorization for certain groups entirely, to be beyond the 
scope of the 2022 TFR, which was intended to be a temporary solution to 
the potential disruption facing certain renewal applicants and their 
U.S. employers resulting from USCIS

[[Page 24634]]

processing delays. DHS also took various sub-regulatory actions, as 
described in section III.B of this preamble, to further address USCIS 
processing delays and minimize the risk of potential gaps in employment 
authorization and/or documentation.
    Lastly, DHS considered the comment in opposition to the rule that 
asserted that DHS only provided a cursory justification for the TFR and 
questioned DHS's authority to issue the TFR, its consideration of the 
impact on U.S. workers, and its justification for claiming good cause 
to issue the rule without the notice and comment procedure required 
under the APA. DHS disagrees with these various assertions, as the 
preamble to the 2022 TFR included a detailed explanation of the legal 
authority and justification for the rulemaking, as well as the basis 
for foregoing notice and comment based on the good cause exception.\61\ 
Nevertheless, DHS included additional details in this rule to further 
clarify the legal authority for this TFR and has provided additional 
explanation regarding the consideration of U.S. workers and potential 
impacts, if any, of this TFR on U.S. workers. Specifically, as 
explained in this preamble, this TFR is limited to certain renewal EAD 
applicants--i.e., those who have already been authorized for 
employment--and automatically extending their employment authorization 
and/or EAD, so that they may continue to perform the services they are 
already doing will have minimal adverse impact, if any, on other U.S. 
workers.\62\ Moreover, in providing benefits for renewal applicants and 
their U.S. employers, this rule indirectly benefits U.S. workers by 
protecting the financial stability and continuity of operations for 
affected U.S. employers. DHS also provides a detailed explanation, 
including citation to cases cited by the commenter, regarding the APA's 
good cause exception and its application to this TFR.
---------------------------------------------------------------------------

    \61\ Among other things, the commenter asserted that section 
274A(h)(3)(B) of the INA, 8 U.S.C. 1324a(h)(3)(B) was ``merely 
definitional'' and did not confer authority on DHS to grant or 
extend employment authorization to certain classes of noncitizens 
covered by the rule. DHS disagrees with the commenter's assertion. 
DHS further discusses the relevant authorities earlier in section II 
of this preamble. See also, e.g., Washington Alliance of Technology 
Workers v. DHS, 50 F.4th 164, 191-192 (D.C. Cir. 2022) (``What 
matters is that section 1324a(h)(3) expressly acknowledges that 
employment authorization need not be specifically conferred by 
statute; it can also be granted by regulation.'').
    \62\ See section V.B.3.d., Module D. Other Impacts. As 
explained, this rule extends current employment authorization for 
individuals who are at risk of losing such authorization solely 
because of USCIS processing delays; it does not grant new work 
authorization to additional persons. See id. According to the most 
recent data (applicable to October 2023), the U.S. labor force 
stands at 167,728,000. The maximum population of about 824,000 
represents 0.50 percent of the national labor force, approximately 
554,000 of which would potentially not lapse as a result of the 
action being taken. See id. Additionally, according to the Bureau of 
Labor Statistics data, and as of December 2023, there were 0.7 
unemployed persons per job opening. See U.S. Department of Labor, 
U.S. Bureau of Labor Statistics, ``Number of unemployed persons per 
job opening, seasonally adjusted,'' https://www.bls.gov/charts/job-openings-and-labor-turnover/unemp-per-job-opening.htm (last visited 
Feb. 6, 2024). Thus, data indicates that there are currently more 
jobs than available employees. As such, DHS believes, based on the 
nature of this rulemaking as well as current economic conditions, 
that the hypothetical possibility of some U.S. workers replacing 
workers who would temporarily lose employment authorization in the 
absence of this rulemaking is not a compelling reason to allow 
widespread losses of employment authorization due to USCIS 
processing delays.
---------------------------------------------------------------------------

    All comments submitted in response to the 2022 TFR have been 
reviewed and considered by DHS in the development of this 2024 TFR.
3. Impact of the 2022 TFR
    The 2022 TFR proved to be very successful at minimizing disruption 
to renewal EAD applicants and their U.S. employers that would have 
otherwise resulted from USCIS processing delays. Not only did the 2022 
TFR immediately restore employment authorization for approximately 
70,000 renewal EAD applicants who were already beyond the up to 180-day 
automatic extension period when the 2022 TFR published, but the 2022 
TFR also helped nearly 280,000 renewal EAD applicants avoid a gap in 
employment authorization or employment authorization documentation 
based on applications filed on or after May 4, 2022, and on or before 
October 26, 2023.

III. Purpose of This Temporary Final Rule

    DHS has determined that the up to 180-day automatic extension under 
8 CFR 274a.13(d) is currently not enough time for the growing number of 
renewal EAD applicants. Without this TFR, hundreds of thousands of 
renewal EAD applications will remain pending beyond the 180-day 
automatic extension period, resulting in applicants losing employment 
authorization and/or EAD validity. The grave situation that many 
renewal applicants (and their families) and their employers will 
imminently or soon face without this action is not the result of the 
applicants' actions but is instead the result of several converging 
factors affecting USCIS operations. These factors, as described in 
detail later in this section, have resulted in a significant increase 
in USCIS processing times for several categories of renewal EAD 
applications.
    Based on these factors, DHS has determined that the 180-day 
automatic extension provision is currently insufficient to protect 
applicants, their families, and their employers as was originally 
intended. If USCIS does not take immediate action, approximately 
800,000 EAD renewal applicants will be in danger of experiencing a gap 
in employment authorization and/or EAD validity in the approximately 2-
year period beginning May 2024.\63\ Such widescale lapses in employment 
authorization and EAD validity would result in substantial and 
unnecessary harm to noncitizens who timely filed for extensions of 
employment authorization, their families, their employers, and the 
public at large. Approximately 80 percent of those renewal applications 
will be pending asylum applicant (C08) EADs. The remaining 20 percent 
will primarily be adjustment applicant (C09) and cancellation of 
removal (C10) EADs.\64\ Therefore, to avert gaps in employment 
authorization and/or EAD validity for certain renewal EAD applicants 
and the harmful effects caused by such lapses, DHS is temporarily 
amending existing DHS regulations to increase the automatic extension 
period from to up to 540 days from the expiration date stated on their 
EADs.
---------------------------------------------------------------------------

    \63\ See section V.B.2. Table 6 of the Regulatory Impact 
Analysis.
    \64\ See section V.B.2. Table 6 of the Regulatory Impact 
Analysis for how the renewal categories will be affected under this 
TFR.
---------------------------------------------------------------------------

    DHS is applying this rule to all renewal EAD application categories 
eligible for automatic extension pursuant to 8 CFR 274a.13(d), not just 
to C08, C09, and C10 EAD renewal categories, 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. While nearly all renewal applications eligible for 
automatic extension 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.

[[Page 24635]]

A. Sudden Increase in EAD Applications and Associated Operational 
Challenges

1. Comparing Fiscal Year (FY) 2023 Receipts to FY 2022 Receipts
    The most recent and significant contributing factor to the severe 
backlog and increased processing times for renewal EAD applications is 
the substantial increase in the number of initial EAD applications 
based on pending asylum applications (C08) that began in March 2023. 
This surge and sustained increase in receipts during FY 2023 \65\ 
substantially increased processing times for renewal EAD applications 
because USCIS was required to prioritize adjudication of certain 
initial EAD applications over other applications such as renewal EAD 
applications.\66\
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    \65\ For the beginning of FY 2023 until March 2023, USCIS 
averaged 160,000 initial EAD application receipts per month. In 
March 2023, initial EAD application receipts spiked to over 250,000. 
For the remainder of FY 2023, USCIS averaged 220,000 initial EAD 
application receipts per month. The EAD category with the largest 
growth of initial receipts in the second half of FY 2023 was C08 
(pending asylum applications).
    \66\ See section III.A.2.a of this preamble for more information 
on this requirement to prioritize initial EAD applications in the 
C08 category (pending asylum applications).
---------------------------------------------------------------------------

    As shown in Tables 1A. through C. below, in FY 2023, USCIS received 
approximately 3.49 million EAD applications, which was 50 percent 
higher than the volume received in FY 2022 (approximately 2.33 
million). USCIS received approximately 2.37 million initial EAD 
applications in FY 2023, which was 77 percent higher than the volume of 
initial EAD applications received in FY 2022 (approximately 1.34 
million). USCIS received approximately 1.12 million renewal EAD 
applications in FY 2023, which was 13 percent higher than the volume 
received in FY 2022 (approximately 990,000).

             Table 1A--Initial and Renewal EAD Applications
------------------------------------------------------------------------
                                EAD
       Fiscal year         applications             Difference
------------------------------------------------------------------------
2022.....................     2,330,000
2023.....................     3,490,000  50 percent higher than 2022.
------------------------------------------------------------------------


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


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

    While overall EAD application filings increased in FY 2023, USCIS 
received a substantial increase in filings in the second half of the 
fiscal year. USCIS received a spike of nearly 100,000 EAD application 
filings in March 2023, resulting in a monthly total well over 300,000. 
However, USCIS received approximately 61,000 fewer EAD applications the 
following month in April 2023, underscoring the dynamic and variable 
nature of EAD filings at that time.
    As shown in Figure 1 below, the primary drivers in the growth of 
EAD applications in FY 2023 (both initials and renewals) were EAD 
applications based on pending asylum applications (C08), TPS (A12/C19), 
and parole (C11).

Figure 1. I-765 Receipts by Major Eligibility Category
[GRAPHIC] [TIFF OMITTED] TR08AP24.000

    The higher volume receipts, particularly initial C08 EAD 
applications, led to increased processing times for renewal EAD 
applications because, as explained in section III.A.2.a., USCIS had to 
prioritize adjudicative resources on C08 initial EAD applications to 
comply with court-ordered deadlines for processing these case types and 
to address other priorities.\67\ Consequently, the efforts USCIS 
undertook to improve its

[[Page 24636]]

processing times for renewal EAD applications--including increasing its 
staffing levels--were insufficient to keep up with the substantial and 
unanticipated increase in EAD application filings.
---------------------------------------------------------------------------

    \67\ See section III.A.2.a of this preamble for more information 
on the court-imposed requirement to prioritize initial EAD 
applications in the C08 category. For more information on EAD 
application processing times resulting from increased filings, see 
section III.C of this preamble.
---------------------------------------------------------------------------

    To address the unexpectedly high volume of incoming receipts, USCIS 
increased officer hours expended on initial C08 EAD applications from 
116,000 in FY 2022 to 361,000 in FY 2023, an increase of approximately 
245,000 hours. The increase in officer hours was comprised of straight 
time \68\ (95,000 hours in FY 2022 to 268,000 hours in FY 2023, an 
increase of 173,000 hours or 282 percent) and overtime (21,000 hours in 
FY 2022 to 93,000 hours in FY 2023, an increase of 72,000 hours or 443 
percent). To achieve this increase in hours, USCIS reassigned officers 
from other workloads and hired new staff.
---------------------------------------------------------------------------

    \68\ Straight time is the regular wage an employee receives for 
working a regular schedule and does not include overtime pay.
---------------------------------------------------------------------------

    For staff transfers from other product lines to initial C08 EAD 
applications, USCIS first utilized staff that previously worked on C08 
renewals because they were already trained on C08 EAD processing. When 
this was insufficient to meet the court-ordered 30-day processing 
requirement for C08 EAD initial applications, USCIS reassigned 
personnel from other product lines and trained them to work on C08 EAD 
processing.
    This court-ordered prioritization of initial C08 EAD applications 
over other applications has negatively affected renewal EAD processing 
times because USCIS was unable to dedicate sufficient officer hours to 
keep pace with renewal EAD applications. To help address this issue, 
USCIS increased officer hours from 92,000 in FY 2022 to 113,000 in FY 
2023 for renewal C08 EAD applications. Despite this increase of 21,000 
officer hours, USCIS has been unable to keep up with its volume of 
renewal C08 EAD applications. As of February 2024, the 80th percentile 
processing time \69\ for renewal C08 EAD applications was 16 months. 
USCIS is also behind in its target for adjudications of other automatic 
extension categories, including C09 (pending adjustment of status 
application, 7.5 months), C10 (suspension of deportation, 16.3 months), 
A12 (TPS, 11.2 months), A5 (asylee, 4.8 months), and A10 (granted 
withholding of deportation or removal, 6.6 months).
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    \69\ The processing times displayed on the USCIS website is the 
amount of time it took USCIS to complete 80 percent of adjudicated 
cases over the last 6 months. ``Processing time is defined as the 
number of days (or months) that have elapsed between the date USCIS 
received an application, petition, or request and the date USCIS 
completed the application, petition, or request (that is, approved 
or denied it) in a given six-month period.'' See USCIS, DHS, ``Case 
Processing Times,'' https://egov.uscis.gov/processing-times/more-info (last visited January 19, 2024).
---------------------------------------------------------------------------

    As is explained in this preamble, EAD application processing times 
and the number of pending EAD applications have not sufficiently 
improved, and despite USCIS' multiple operational and sub-regulatory 
efforts to reduce the backlog, ongoing and dynamic circumstances, which 
are outside of USCIS' control, have prevented USCIS from keeping up 
with the adjudicatory workload.
    USCIS has continued to closely monitor the automatic-extension 
eligible renewal EAD caseloads and processing times. Despite USCIS' 
best efforts, such improvements have not yet provided the desired 
impact. Table 2 shows that the number of pending EAD applications has 
not materially improved since the end of FY 2023. The total number of 
pending EAD applications at the end of February of 2024 is 
approximately 1.40 million applications, which continues to pose a 
challenge for USCIS and also impacts processing times for renewal EAD 
applications eligible for automatic extensions because of the limited 
amount of USCIS resources that can be allocated to those case types. 
The total number of pending auto-extension EAD renewal applications at 
the end of February 2024 was approximately 439,000. While some progress 
has been made in addressing the backlog, the progress has not yet 
achieved sufficient gains to reduce EAD renewal processing times and 
avoid imminent and near-term lapses in employment authorization for EAD 
renewal applicants.

               Table 2--Pending EAD Applications by Month
------------------------------------------------------------------------
                                                                 Auto-
                     Month                         All EAD     extension
                                                applications   renewals
------------------------------------------------------------------------
Sep 2023......................................     1,490,000     534,000
Oct 2023......................................     1,510,000     504,000
Nov 2023......................................     1,500,000     474,000
Dec 2023......................................     1,470,000     448,000
Jan 2024......................................     1,440,000     457,000
Feb 2024......................................     1,400,000     439,000
------------------------------------------------------------------------
Source: DHS, USCIS, OPQ, CLAIMS3, ELIS, retrieved March 15, 2024.

2. Effect of Operational Challenges on EAD Application Adjudications
a. Operational Challenges Associated With Initial EAD Application 
Filings by Pending Asylum Applicants (C08)
    The operational challenges associated with the recent surge in EAD 
applications has primarily \70\ been driven by initial EAD applications 
by individuals with pending asylum applications (C08).\71\ In FY 2022, 
USCIS received 266,036 initial C08 applications. In FY 2023, receipts 
dramatically increased to 802,284. The increase in initial C08 EAD 
applications placed a substantial strain on USCIS' adjudicative 
resources due to the high volume of cases and, as discussed in this 
section, the stringent 30-day timeline in which USCIS must, by 
regulation and court order, adjudicate these applications.
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    \70\ Other factors related to EAD processing have affected 
USCIS' workload and personnel, such as processing EADs for 
noncitizens who were paroled after scheduling an appointment through 
CBP One or through the Cuban, Haitian, Nicaraguan, and Venezuelan 
parole processes. However, these processes have not significantly 
compounded the pressures on EAD renewal processing, and they do not 
alter USCIS' determination that the primary factor leading to longer 
processing times for renewal EAD applications is the sudden and 
sustained increase in initial applications for EADs in the C08 
category, which must be adjudicated within 30 days. See section 
III.A.2 of this preamble for a detailed discussion of the 
operational effects of the C08 initial applications.
    \71\ Currently, pending asylum applicants may not be granted 
employment authorization until 180 days after the filing of the 
application for asylum. INA sec. 208(d)(2), 8 U.S.C. 1158(d)(2). 
Pending asylum applicants requesting employment authorization under 
the C08 category may file their EAD applications once the asylum 
application has been pending for 150 days. 8 CFR 208.7(a)(1).
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    In addition to increased EAD filings, EAD processing overall also 
has been affected by litigation regarding two rules, published in 2020, 
that amended the regulations governing EAD applications associated with 
asylum applications.
    The regulation at 8 CFR 208.7(a)(1), which was originally 
promulgated in 1994,\72\ requires USCIS to adjudicate initial C08 EAD 
applications within 30 days of filing.\73\ However, on June 22, 2020, 
DHS published a final rule titled ``Removal of 30-day Processing 
Provision for Asylum Applicant-Related Form I-765 Employment 
Authorization Applications'', which amended 8 CFR 208.7(a)(1) to remove 
the 30-day

[[Page 24637]]

processing requirement.\74\ Several days later, DHS published another 
final rule titled ``Asylum Application, Interview, and Employment 
Authorization for Applicants,'' which made further changes to DHS's 
regulations governing eligibility for employment authorization based on 
a pending asylum application, including extending the waiting period 
before asylum applicants could apply for an EAD from 180 days to 365 
days (not including delays caused or requested by an applicant) and 
imposing other restrictions and requirements.\75\
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    \72\ See 59 FR 62284 (Dec. 5, 1994).
    \73\ On July 26, 2018, in Rosario v. USCIS, the U.S. District 
Court for the Western District of Washington granted summary 
judgment against the government and issued an order requiring USCIS 
to comply with the 30-day regulatory timeline at 8 CFR 208.7. See 
365 F. Supp. 3d 1156 (W.D. Wash. 2018).
    \74\ See 85 FR 37502 (June 22, 2020). DHS issued this final rule 
after having issued a proposed rule, seeking public comments. See 84 
FR 47148 (Sept. 9, 2019).
    \75\ See 85 FR 38532 (June 26, 2020). This final rule was 
promulgated after publishing a notice of proposed rulemaking. See 84 
FR 62374 (Nov. 14, 2019).
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    Litigation followed the publication of these two rules (``2020 
Asylum EAD Rules''), including CASA \76\ in the U.S. District Court for 
the District of Maryland, and Asylumworks \77\ in the U.S. District 
Court for the District of Columbia. On September 11, 2020, the court in 
CASA imposed a preliminary injunction requiring that USCIS not apply 
the 2020 Asylum EAD Rules to members of CASA and Asylum Seeker Advocacy 
Project organizations. On February 7, 2022, the U.S. District Court for 
the District of Columbia issued an order in Asylumworks vacating the 
2020 Asylum EAD Rules in their entirety.\78\ On September 22, 2022, DHS 
published a final rule titled ``Asylum Application, and Employment 
Authorization for Applicants; Implementation of Vacatur'' \79\ that 
removed the changes made by the 2020 Asylum EAD Rules, restoring the 
regulatory text that predated the 2020 Asylum EAD Rules and thus 
implementing the court order in Asylumworks.
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    \76\ See CASA de Maryland, Inc. v. Wolf, 486 F. Supp. 3d 928 (D. 
Md. 2020).
    \77\ See Asylumworks v. Mayorkas, 590 F. Supp. 3d 11 (D.D.C. 
Feb. 7, 2022).
    \78\ Asylumworks v. Mayorkas, 590 F. Supp. 3d 11 (D.D.C. Feb. 7, 
2022) (``Asylumworks vacatur''). The vacatur decision in Asylumworks 
effectively mooted the CASA case. The CASA court eventually 
acknowledged the case had become moot on May 18, 2023, when it 
granted the government's motion to dismiss. See CASA de Maryland, 
Inc. v. Mayorkas, No. 8:20-CV-2118-PX, 2023 WL 3547497 (D. Md. May 
18, 2023).
    \79\ See 87 FR 57795 (Sept. 22, 2022).
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    As a result of the Asylumworks court order, since February 7, 2022, 
USCIS has been required to process initial EAD applications for all 
asylum applicants within 30 days of filing. While the court order 
required a return to a regulatory requirement that existed until 2020, 
the burden created by the court's order was significant and continues 
to affect overall EAD processing today.
    Following the Asylumworks vacatur, at the end of February 2022, 
there were 93,639 pending cases to which the 30-day processing 
requirement applied. To address the backlog of cases and comply with 
the court's order, USCIS worked to increase resources for the entire 
initial C08 EAD application workload, including adding staff (pulling 
from other workloads as well as new hires) and offering overtime.\80\
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    \80\ Receipts of initial C08 EAD applications for the first half 
of FY 2022 averaged 16,900 per month, and for the second half of FY 
2022, 27,500 receipts per month. Average monthly receipts of initial 
C08 EAD applications for the first half of FY 2023 was 55,000, and 
it increased to 78,700 in the second half of FY 2023.
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    In particular, USCIS has added staff dedicated to the adjudication 
of C08 initial EAD applications by reassigning and training experienced 
officers from other portfolios and assigning new hires to this 
portfolio. In addition, USCIS offered overtime to all officers working 
C08 initial EAD applications.\81\ As a result of these efforts, USCIS 
maintained higher levels of completions than have occurred since 2017, 
resulting in the significant reduction of total C08 initial EAD 
applications pending over 30 days. USCIS expended 68,000 hours on C08 
initial EAD applications in FY 2021, 116,000 hours in FY 2022, and 
361,000 hours in FY 2023. USCIS expended 245,000 more officer hours in 
FY 2023 than FY 2022 adjudicating C08 initial EAD applications. Some of 
these hours could have gone to other workloads, including renewal EAD 
applications.
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    \81\ From October 2020 to February 2022, USCIS officers 
collectively averaged 250 overtime hours per month processing C08 
initial EAD applications. From March 2022 until February 2023, USCIS 
officers collectively averaged 3,800 overtime hours per month on C08 
initial EAD applications. From March 2023 until October 2023, USCIS 
officers collectively averaged 9,900 overtime hours per month on C08 
initial EAD applications.
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b. Impact of the Significant Increase in Referrals to USCIS for 
Credible Fear Assessments
    As DHS noted in 2023, economic and political instability around the 
world has been fueling high levels of global migration, including in 
the Western Hemisphere.\82\ For example, in December 2022, U.S. Border 
Patrol (USBP) \83\ encountered approximately 222,000 noncitizens 
between ports of entry, then second only to May 2022 (approximately 
224,000 encounters). Daily encounters averaged 7,152 in that month (as 
compared to the daily average of 1,265 in the immediate pre-pandemic 
period, 2014-2019).\84\ The Department estimated, based on April 2023 
projections and planning models, that the number of daily encounters 
could rise to approximately 11,000 per day.\85\ The Department 
announced sweeping new measures to address the anticipated further 
increase in migration, including a new rule that introduced a 
rebuttable presumption of asylum ineligibility for certain noncitizens 
\86\ and a surge in resources to expeditiously process and remove 
individuals who arrive at the southwest border without a lawful basis 
to remain.\87\
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    \82\ See 88 FR 31314, 31314-31315 (May 16, 2023). Analysis by 
the DHS Office of Immigration Statistics (OIS) found that even while 
the Centers for Disease Control and Prevention's (CDC) Title 42 
public health Order had been in place, encounters with noncitizens 
attempting to cross the United States' southwest border without 
authorization has been high. See 88 FR at 31315. The ``Title 42 
public health Order'' issued by CDC under 42 U.S.C. 265, was in 
effect from March 20, 2020 until May 11, 2023 and suspended the 
introduction into the United States of certain persons who, due to 
the existence of COVID-19 in countries or places from which persons 
were traveling, created a serious danger of the introduction of such 
disease into the United States. See 85 FR 17060 (Mar. 26, 2020). The 
processes usually applicable under the INA, Title 8 of the U.S.C., 
generally did not apply to cover noncitizens while the Order was in 
effect.
    \83\ USBP is the component of U.S. Customs and Border Protection 
(CBP) within DHS responsible for U.S. border security between ports 
of entry. USBP's mission is to detect and prevent the illegal entry 
of individuals into the United States. See CBP, DHS, ``Along the 
U.S. Borders,'' https://www.cbp.gov/border-security/along-us-borders 
(last visited Mar. 7, 2024).
    \84\ See 88 FR 31314, 31315 (May 16, 2023).
    \85\ See 88 FR 31314, 31316 (May 16, 2023).
    \86\ See 88 FR 31314, 31314 (May 16, 2023).
    \87\ See DHS, Fact Sheet: U.S. Government Announces Sweeping New 
Actions to Manage Regional Migration (Apr. 27, 2023), https://www.dhs.gov/news/2023/04/27/fact-sheet-us-government-announces-sweeping-new-actions-manage-regional-migration (last visited Mar. 
11, 2024).
---------------------------------------------------------------------------

    These new measures have helped DHS to better manage migratory 
flows, but require USCIS resources to implement in the face of 
historically high levels of encounters at the southwest land border 
between the ports of entry. Although such encounters dropped between 
April 2023 (183,921) and May 2023 (171,382), and dropped again in June 
2023 (99,538), encounters began to increase in July 2023 (132,642) and 
then remained higher than May 2023 levels through December 2023 
(249,735), before falling again in January 2024 (176,205).\88\ With 
this increase in encounters at the southwest border, there has also 
been an increase in referrals to USCIS for credible fear screenings 
\89\ of individuals

[[Page 24638]]

who express an intention to apply for asylum or who express a fear of 
persecution, torture, or returning to their home country. In FY 2023, 
USCIS received a historic high of 149,700 credible fear referrals.\90\
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    \88\ See Southwest Land Border Encounters at https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters (last 
visited Mar. 7, 2024).
    \89\ Under the INA, certain noncitizens arriving in the United 
States who are found to be inadmissible under either section 
212(a)(6)(C) of the INA, 8 U.S.C. 1182(a)(6)(C) (misrepresentation) 
or section 212(a)(7) of the INA, 8 U.S.C. 1182(a)(7) (for failure to 
meet documentation requirements for admission), may be removed from 
the United States without a further hearing or review (expedited 
removal) unless the noncitizen indicates either an intention to 
apply for asylum under section 208 of the INA, 8 U.S.C. 1158, or 
expresses a fear of persecution or torture. See INA sec. 
235(b)(1)(A)(i), (iii), 8 U.S.C. 1225(b)(1)(A)(i), (iii); 8 CFR 
235.3(b)(4). If such a noncitizen indicates an intention to apply 
for asylum or expresses a fear of persecution, torture, or of 
returning to their home country, the immigration officer refers the 
noncitizen for an interview with a USCIS asylum officer, who will 
determine if the noncitizen has a credible fear of persecution in 
his or her country of nationality or last habitual residence. See 
INA sec. 235(b)(1)(A), 8 U.S.C. 1225(b)(1)(A). If the USCIS asylum 
officer determines the noncitizen has a credible fear of persecution 
or torture, the noncitizen may apply for asylum and remain in the 
United States until a final determination is made on the asylum 
application by an immigration judge or, in some cases, by an asylum 
officer. See generally INA sec. 235(b), 240, 8 U.S.C. 1225(b), 
1229a; see also 8 CFR 208.2, 208.30 and 1208.30. The HSA grants to 
DHS the authority to adjudicate affirmative asylum applications--
i.e., applications for asylum filed with DHS for individuals not in 
removal proceedings--and authority to conduct credible fear 
interviews, make credible fear determinations in the context of 
expedited removal, and establish procedures for further 
consideration of asylum applications after an individual is found to 
have a credible fear. See 6 U.S.C. 271(b)(3); INA sec. 235(b)(1)(B), 
8 U.S.C. 1225(b)(1)(B).
    \90\ See USCIS, DHS, Asylum Division Monthly Statistics Report, 
Fiscal year 2023, October 2022 to September 2023, https://www.uscis.gov/sites/default/files/document/data/asylumfiscalyear2023todatestats_230930.xlsx (last visited Nov. 27, 
2023).
---------------------------------------------------------------------------

    The Directorate at USCIS that processes these claims, the Refugee, 
Asylum and International Operations Directorate (``RAIO''), had 
insufficient staff to accommodate such increased volume. To address the 
impact of these high numbers of credible fear referrals from the 
southwest border on existing asylum and credible fear procedures, USCIS 
has been detailing USCIS personnel, including officers who adjudicate 
EAD applications, to the USCIS RAIO directorate for up to 120 days to 
conduct credible fear screenings.\91\ However, because only an 
immigration officer who is also an ``asylum officer,'' as defined at 
section 235(b)(1)(E) of the Act, 8 U.S.C. 1225(b)(1)(E), may conduct 
credible fear screenings, USCIS had to ensure that any non-asylum 
officers received the necessary asylum officer training before they 
could start on the detail.\92\ Thus, many USCIS detailees were required 
to take a full-time asylum officer training course lasting several 
weeks. Having had to divert adjudicatory resources by having 
adjudicators detailed to the credible fear process created a 
significant operational strain in the renewal EAD adjudication 
resulting in an increase of processing times.\93\ Due to the ongoing 
need for additional asylum officers and credible fear interviews, USCIS 
continues to solicit for detailees across all USCIS components.
---------------------------------------------------------------------------

    \91\ See DHS, ``Fact Sheet: U.S. Government Announces Sweeping 
New Actions to Manage Regional Migration,'' https://www.dhs.gov/news/2023/04/27/fact-sheet-us-government-announces-sweeping-new-actions-manage-regional-migration (last updated May 11, 2023) (``DHS 
and the Department of Justice (DOJ) are also surging asylum officers 
and immigration judges, respectively, to complete immigration 
proceedings at the border more quickly.''). Approximately 157 
immigration officer FTEs participated in a credible fear detail in 
FY 2023, and approximately 212 FTEs participated from May 2023 to 
January 2024.
    \92\ See INA sec. 235(b)(1)(B)(i) and (b)(1)(e), 8 U.S.C. 
1225(b)(1)(B)(i) and (b)(1)(e); 8 CFR 208.1(b). As required by law, 
asylum officers receive special training, including training on 
international human rights law, non-adversarial interview 
techniques, and country conditions information.
    \93\ On October 20, 2023, the Administration requested $755 
million in supplemental funding from Congress for USCIS to hire 
additional officers to adjudicate an increase in asylum filings and 
address the backlog in processing employment authorization 
applications and immigration benefit requests. See Letter regarding 
critical national security funding needs for FY 2024, https://www.whitehouse.gov/wp-content/uploads/2023/10/Letter-regarding-critical-national-security-funding-needs-for-FY-2024.pdf. Congress 
has not fulfilled that request as of March 11, 2024.
---------------------------------------------------------------------------

    Positive credible fear determinations also create a downstream 
increase in applications for employment authorization, as these 
individuals may apply for asylum before the Executive Office for 
Immigration Review, which renders them eligible to apply for employment 
authorization after the asylum application has been pending for 150 
days.
c. Impact of Affirmative and Defensive Asylum Filing Surges and 
Backlogs and the Effect on C08 Renewals
    As noted above, the recent surge in EAD applications has primarily 
been driven by initial EAD applications filed by individuals with 
pending asylum applications (C08). USCIS received historic levels of 
affirmative asylum applications in FY 2022 and FY 2023. In FY 2022, 
USCIS received more than 240,600 affirmative asylum applications.\94\ 
In FY 2023, USCIS received more than 454,300 affirmative asylum 
applications.\95\ Despite efforts to adjudicate these pending 
applications, backlogs for both affirmative (filed with USCIS) and 
defensive (filed with the Executive Office for Immigration Review 
(EOIR)) asylum applications have grown. Specifically, as of September 
30, 2023, over 1.062 million affirmative asylum applications were 
pending with USCIS and 937,000 total asylum applications were pending 
before EOIR, respectively. Owing to these backlogs, USCIS has seen an 
increase in C08 renewal EAD applications. Because initial C08 EADs 
issued prior to September 2023 were valid for a period of 2 years, the 
backlog in asylum applications at USCIS and EOIR is projected to result 
in over 770,000 C08 renewal EAD application filings during the 
effective period of this TFR.\96\
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    \94\ See USCIS, DHS, Asylum Division Monthly Statistics Report. 
Fiscal Year 2022. October 2021 to September 2022, https://www.uscis.gov/sites/default/files/document/data/AsylumFiscalYear2022ToDateStats.xlsx (last visited Nov. 27, 2023).
    \95\ See USCIS, DHS, Asylum Division Monthly Statistics Report. 
Fiscal year 2023. October 2022 to September 2023, https://www.uscis.gov/sites/default/files/document/data/asylumfiscalyear2023todatestats_230930.xlsx, (last visited Nov. 27, 
2023).
    \96\ See TFR Modeling Methodology.
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3. Additional Designations for Temporary Protected Status
    Over the course of FY 2022 and FY 2023, the Secretary of Homeland 
Security, following consideration of relevant country conditions and 
other appropriate factors and in consultation with interagency 
partners, designated, redesignated, and extended the designation of 
several foreign countries for TPS under section 244 of the INA, 8 
U.S.C. 1254a. There are currently 16 foreign countries with active TPS 
designations.\97\ TPS provides temporary protection from removal and 
employment authorization to eligible nationals of designated countries 
present in the United States. The Secretary may designate a country for 
TPS if the conditions in a country prevent the country's nationals from 
returning safely due to ongoing armed conflict or extraordinary and 
temporary conditions or render the country temporarily unable to handle 
adequately the return of its nationals due to an environmental disaster 
that has resulted in a substantial but temporary disruption in living 
conditions.\98\ USCIS is the designated entity within DHS to administer 
the TPS program.
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    \97\ For a list of designated countries, see https://www.uscis.gov/humanitarian/temporary-protected-status (last visited 
Nov. 7, 2023).
    \98\ See INA secs. 244(b)(1)(A)-(C); 8 U.S.C. 1254a(b)(1)(A)-
(C).
---------------------------------------------------------------------------

    Once a country is designated, eligible nationals of that country 
may apply for TPS by filing Form I-821, Application for Temporary 
Protected Status (TPS application). Applicants may also request an EAD 
by filing an EAD application with their TPS application, while their 
TPS application is pending

[[Page 24639]]

or after their TPS application is approved.\99\ TPS-based EADs fall 
under the A12 (TPS previously granted) and C19 (initial TPS application 
pending) categories. Individuals granted TPS may re-register for TPS 
and apply to renew their EADs as part of any announced re-registration 
period if the country continues to be designated for TPS.\100\
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    \99\ See INA sec. 244(a)(4), 8 U.S.C. 1254a(a)(4); 8 CFR 244.5, 
274a.12(c)(19).
    \100\ See INA sec. 244(a)(1)(B), 8 U.S.C. 1254a(a)(1)(B); 8 CFR 
244.12, 274a.12(a)(12).
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    Over the course of FY 2022 and FY 2023, the Secretary newly 
designated five countries for TPS: Afghanistan,\101\ Cameroon,\102\ 
Ethiopia,\103\ Sudan,\104\ and Ukraine \105\ because of humanitarian 
concerns and instability in these countries. These initial designations 
allowed nationals of these countries who were already in the United 
States to remain in the United States and apply for EADs. During this 
same period, the Secretary extended and redesignated for TPS 
Burma,\106\ Haiti,\107\ Syria,\108\ Somalia,\109\ South Sudan,\110\ and 
Yemen,\111\ which allowed existing TPS beneficiaries to re-register for 
TPS and apply for renewal of their EADs, and allowed additional 
nationals present in the United States from these countries to apply 
for TPS to remain in the United States and apply for EADs. The 
Secretary also extended the TPS designation for El Salvador,\112\ 
Honduras,\113\ Nicaragua,\114\ Nepal,\115\ and Venezuela,\116\ thereby 
allowing existing TPS beneficiaries to re-register for TPS and apply 
for renewal of their EADs.
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    \101\ 87 FR 30976 (May 20, 2022).
    \102\ 87 FR 34706 (June 7, 2022).
    \103\ 87 FR 76074 (Dec. 12, 2022).
    \104\ 87 FR 23202 (Apr. 19, 2022).
    \105\ 87 FR 23211 (Apr. 19, 2022).
    \106\ 87 FR 58515 (Sept. 27, 2022).
    \107\ 88 FR 5022 (Jan. 26, 2023).
    \108\ 87 FR 46982 (Aug. 1, 2022).
    \109\ 88 FR 15434 (Mar. 13, 2023).
    \110\ 88 FR 60971 (Sept. 6, 2023).
    \111\ 88 FR 94 (Jan. 3, 2023).
    \112\ 88 FR 40282 (June 21, 2023).
    \113\ 88 FR 40304 (June 21, 2023).
    \114\ 88 FR 40294 (June 21, 2023).
    \115\ 88 FR 40317 (June 21, 2023).
    \116\ 87 FR 55024 (Sept. 8, 2022).
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    These additional designations, extensions, and redesignations 
resulted in a significant increase in initial and renewal EAD filings. 
In FY 2021, USCIS received 148,898 EAD applications filed by TPS 
applicants. Of these, 24,172 were renewal EAD applications. In FY 2022, 
USCIS received 100,484 EAD applications filed by TPS applicants. Of 
these, 33,352 were renewal EAD applications. In FY 2023, USCIS received 
329,325 EAD applications filed by TPS applicants, which represent an 
over 300 percent increase in TPS EAD applications from FY 2022 to FY 
2023. Of these, 230,363 were renewal EAD applications as a result of 
the withdrawal of the TPS terminations and extensions of TPS in that 
fiscal year. As of January 2024, the Secretary has redesignated and 
extended TPS for Cameroon \117\ and Syria.\118\
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    \117\ 88 FR 69945 (Oct. 10, 2023).
    \118\ 89 FR 5562 (Jan 29, 2024).
---------------------------------------------------------------------------

    The increased number of TPS-based EAD filings (particularly in 
renewal EAD applications in the A12 category) from FY 2022 to FY 2023 
further stretched limited USCIS resources and contributed to the longer 
processing times for renewal EAD applications overall. Specifically, 
this increase helps explain why the 80th percentile processing time for 
automatic extension-eligible renewal applicants was 14.5 months by 
February 2024,\119\ and increased the number of persons who are 
projected to experience a lapse in their employment authorization and/
or EAD validity starting May 2024, as further detailed below.
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    \119\ 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 Nov. 14, 2023).
---------------------------------------------------------------------------

4. Increased Workforce Resources Unlikely To Keep Pace
    Despite USCIS' best efforts to sufficiently anticipate and allocate 
staff to process EAD applications, USCIS has been unable to keep pace 
due to unexpected increases in receipts. The agency increased its 
adjudicative resources in concert with the increased receipts, devoting 
approximately 54 percent more adjudicative hours to EADs in FY 2023 
than in FY 2022, resulting in 46 percent more EAD completions than in 
FY 2022.\120\ USCIS projects that EAD application filings will continue 
to increase into FY 2024. The rapid increase in anticipated EAD 
application filings in FY 2024,\121\ combined with the mandated 30-day 
processing time for initial C08 EAD applications, means that USCIS 
expects a shortfall in adjudications compared to receipts. This 
shortfall will prevent USCIS from adjudicating renewal EAD applications 
in time to avoid approximately 800,000 applicants from experiencing a 
temporary lapse in employment authorization and/or employment 
authorization documentation during the 2-year period beginning May 2024 
absent the implementation of this temporary final rule.
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    \120\ The 54 percent increase in officer hours did not result in 
a 54 percent increase in completions because there are different 
hours per completion rates for different EAD categories. There was a 
significant increase in C08 initial adjudications in FY 2023. In FY 
2023, the average C08 initial EAD application took 0.44 hours, 
whereas EADs overall took 0.23 hours. Therefore, the difference in 
complexity of different types of EAD adjudications is the primary 
reason for the deviation in the increase of total hours and total 
completions.
    \121\ The Volume Projection Committee (VPC) forecasts USCIS 
workload volume using subject matter expertise from various 
directorates and program offices, including the Service Centers, 
National Benefits Center, RAIO, and regional, district, and field 
offices. Input from these offices helps refine the volume 
projections. VPC forecasts that there will be 4.6 million EAD 
application filings for FY 2024, compared to the approximately 3.49 
million EAD applications filed in FY 2023.
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    From FY 2021 to FY 2023, adjudicative staff time \122\ in the 
Service Center Operations (SCOPS) and Field Operations Directorate 
(FOD) spent on EAD adjudications increased rapidly. In FY 2021, USCIS 
Immigration Services Officers (ISOs) in these directorates expended 
6,571,544 hours on all form types. This equates to roughly 5,249 full-
time equivalents (FTEs).\123\
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    \122\ Adjudicative staff time means actual time, in hours, that 
USCIS spends adjudicating a benefit request. This includes straight 
time and overtime.
    \123\ An FTE is an approximation of the number of hours of labor 
that make up the equivalent of one full-time employee. It allows for 
a more meaningful comparison of resources than the raw number of 
staff allocated to a particular adjudication, as it accounts for 
factors such as part-time work, leave, and other factors. When 
calculating FTEs, USCIS used a 60-percent utilization rate to 
account for non-adjudicative time, such as the time officers spend 
attending trainings and roundtable discussions, performing 
administrative tasks, and leave.
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    During FY 2021, USCIS spent 420,248 hours on EAD applications 
alone, which represents approximately 336 FTEs, or 6 percent of the 
total adjudicative time spent on all filings. In FY 2022, USCIS ISOs 
expended 6,732,963 hours (5,378 FTEs) in adjudications in SCOPS and 
FOD, with 512,413 hours (which equates to approximately 409 FTEs), or 8 
percent of total adjudication time for all filings, used on EAD 
applications alone. In FY 2023, the proportion of time spent on EAD 
application adjudications continued to increase, with 788,861 hours 
(which equates to approximately 630 FTEs), or 12 percent of the total 
adjudicative time of 6,376,682 (5,093 FTEs).\124\
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    \124\ The number of adjudicative hours in FOD and SCOPS went 
down in FY 2023, as the FTE equivalent of approximately 157 
Immigration Services Officers were detailed to credible fear 
screenings.
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    Thus, from FY 2021 to FY 2023, the proportion of USCIS' total 
adjudicative time that was spent on EAD adjudications doubled from 6 
percent of total adjudicative time to 12 percent, and USCIS was not 
able to sufficiently increase staff for EAD adjudications,

[[Page 24640]]

despite its robust hiring efforts.\125\ This doubling of adjudicative 
time expended on a single form type over 2 years is highly unusual 
\126\ and cannot be sustained without increasing resources and staffing 
rapidly.
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    \125\ See other parts of this preamble explaining operational 
challenges encountered through litigation and other events, such as 
the need for increased staffing at the southwest border.
    \126\ For example, over the same time period, adjudicative time 
spent on other large USCIS workloads held relatively steady. As a 
percentage of adjudication time for all filings, time spent on Form 
N-400, Application for Naturalization was 22 percent in FY 2021, 22 
percent in FY 2022, and 20 percent in FY 2023. Time on Form I-129, 
Petition for Nonimmigrant Worker seeking H-1B classification was 8 
percent of all total filings in FY 2021, 8 percent in FY 2022, and 9 
percent in FY 2023.
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    As discussed earlier in this section, USCIS projects continued 
growth in EAD filings in FY 2024, requiring a combination of 
reallocating additional staff to adjudicate EAD applications, providing 
additional overtime opportunities, and hiring new staff.\127\
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    \127\ The resources required to reduce the processing backlogs 
for renewal EAD applications is discussed at section III.C.3.a.
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    Based on these developments, USCIS predicts that without this TFR, 
approximately 800,000 noncitizens will experience a lapse in employment 
authorization or proof of employment authorization for the 2-year 
period beginning May 2024.\128\
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    \128\ See section V.B.2. Table 7, TFR Future Population 
Projections by Month, Rounded to Thousands.
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B. Other Measures Taken To Reduce EAD Application Processing Times

    USCIS has also taken other significant operational steps to 
streamline EAD adjudications and reduce EAD processing times. Backlogs 
in general are a significant concern for the applicants who are 
applying for benefits with USCIS.\129\ 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 and/or employment 
eligibility verification documentation, 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 on pending EAD applications have on applicants and 
is striving to address the backlogs through a number of measures, 
including but not limited to this TFR. Specifically, USCIS has taken 
the following steps to address EAD application workloads and processing 
times, which includes initiatives that were implemented prior to the 
2022 TFR and are still in effect, such as lifting the hiring freeze, 
publishing the Fee Rule, and reducing processing time for adjustment of 
status applicants with visas that are immediately available.
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    \129\ For example, the Citizenship and Immigration Services 
Ombudsman 2023 Annual Report to Congress stated that the backlogs at 
USCIS have resulted in an ``ongoing exponential increase . . . in 
requests for case assistance.'' The Report further states ``USCIS 
began the year fully cognizant of its challenges in decreasing 
processing times and getting its backlogs under control and took 
significant steps to accomplish those goals. But 2022 brought with 
it significant new tasks for the agency that would create their own 
processing and operational challenges--challenges that the agency 
continues to grapple with in 2023 and which will impact future 
workloads.'' See CIS Ombudsman, DHS, ``Citizenship and Immigration 
Services Ombudsman Annual Report 2023 '' (June 30, 2023) at v, viii, 
https://www.dhs.gov/sites/default/files/2023-07/2023%20Annual%20Report%20to%20Congress_0.pdf.
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1. Increased EAD Validity Periods for Certain Applicants
    As discussed in section II. B., Legal Framework for Employment 
Authorization, while certain classes of noncitizens are authorized to 
engage in employment authorization incident to status or circumstance, 
other classes of noncitizens are authorized to engage in employment 
only if they apply for and are granted such authorization by 
USCIS.\130\ Under governing regulations, USCIS has the discretion to 
assign the validity period for EADs.\131\
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    \130\ See 8 CFR 274a.12(a)-(c).
    \131\ See 8 CFR 274a.12(a) (``USCIS may, in its discretion, 
determine the validity period assigned to any document issued 
evidencing an alien's authorization to work in the United 
States.''); 8 CFR 274a.12(c) (``USCIS, in its discretion, may 
establish a specific validity period for an employment authorization 
document, which may include any period when an administrative appeal 
or judicial review of an application or petition is pending.'').
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    Since 2021, USCIS has made multiple policy changes to increase the 
maximum validity period for EADs in a number of categories.\132\ In 
February 2022, USCIS increased the validity period for initial and 
renewal EADs for asylees and refugees, noncitizens with withholding of 
deportation or removal, and VAWA self-petitioners from maximum 1 year 
to maximum 2 years.\133\
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    \132\ See, e.g., USCIS, DHS, Policy Alert (PA-2021-10), 
``Employment Authorization for Certain Adjustment Applicants'' (June 
9, 2021), https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20210609-EmploymentAuthorization.pdf (updating the 
validity period for initial and renewal EADs issued to applicants 
for adjustment of status under INA 245 from 1 year to 2 years).
    \133\ See USCIS, DHS, Policy Alert (PA-2022-07), ``Updating 
General Guidelines on Maximum Validity Periods for Employment 
Authorization Documents based on Certain Categories'' (Feb. 7, 
2022), https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20220207-EmploymentAuthorizationValidity.pdf.
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    USCIS also changed the policy by which, in some cases, initial and/
or renewal EADs were issued for noncitizens with deferred action (non-
DACA) and parolees for a validity period that was less than the period 
of deferred action or parole. The update increased the maximum period 
of EAD validity to run concurrently with the underlying deferred action 
or parole, thus reducing the need for repeat renewal EAD filings by 
these noncitizens.\134\
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    \134\ See USCIS, DHS, Policy Alert (PA-2022-07), ``Updating 
General Guidelines on Maximum Validity Periods for Employment 
Authorization Documents based on Certain Categories'' (Feb. 7, 
2022), https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20220207-EmploymentAuthorizationValidity.pdf.
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    On September 27, 2023, USCIS updated its policy to increase the 
validity period to a maximum of 5 years for initial and renewal EADs 
for certain noncitizens who must apply for employment authorization, 
including applicants for asylum or withholding of removal, adjustment 
of status under section 245 of the INA, 8 U.S.C. 1255, and suspension 
of deportation or cancellation of removal.\135\ USCIS expects this EAD 
policy to cause EAD filings in the applicable categories to 
significantly decrease starting in late FY 2025 and remain low until 
the third quarter of FY 2028, as there should be relatively few EADs 
with an expiration date between September 25, 2025, and September 26, 
2028. Although USCIS predicts that the main effects of this policy 
change will not occur until after October 2025, USCIS projects that the 
increased validity periods will lead to a greater than 95 percent 
reduction in renewal EAD filing volumes from FY 2026 to late FY 2028 
for categories covered by this policy.
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    \135\ See USCIS, DHS, Policy Alert (PA-2023-27), ``Employment 
Authorization Document Validity Period for Certain Categories'' 
(Sept. 27, 2023), https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20230927-EmploymentAuthorizationValidity.pdf.
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    The guidance that was published as part of the updated policy also 
explains that the categories of noncitizens who are automatically 
authorized employment incident to status or circumstances and provided 
more information on who can present a Form I-94, Arrival/Departure 
Record, to an employer as an acceptable document showing employment 
authorization under List C of Form I-9, Employment Eligibility 
Verification.\136\ This guidance

[[Page 24641]]

also clarified that certain Afghan and Ukrainian parolees are 
employment authorized incident to parole.\137\
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    \136\ See USCIS, DHS, Policy Alert (PA-2023-27), ``Employment 
Authorization Document Validity Period for Certain Categories'' 
(Sept. 27, 2023), https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20230927-EmploymentAuthorizationValidity.pdf.
    \137\ See USCIS, DHS, Policy Alert (PA-2023-27), ``Employment 
Authorization Document Validity Period for Certain Categories'' 
(Sept. 27, 2023), https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20230927-EmploymentAuthorizationValidity.pdf.
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    With the ongoing efforts to improves processing, which USCIS 
anticipates will lead to eventual reductions in filing volumes, USCIS 
will be better able to keep up with the EAD application workflow, avoid 
lapses in employment authorization and documentation, focus on reducing 
the overall backlog at USCIS, and enable officers to focus on other 
workloads.
2. Lifted the Hiring Freeze and Increased the Number of Full Time 
Equivalent Employees
    USCIS is a fee-based agency that relies on predictable fee revenue 
and its carryover from the previous year. Due in part to the 
significant drop in revenue from the impact of the COVID-19 pandemic on 
benefit request filings and USCIS' inability to update its fee 
structure since the 2016 Fee Rule, as explained below, USCIS employed 
every available means to preserve sufficient funds to meet payroll and 
carryover obligations. These measures included drastic cuts as well as 
an agency-wide hiring freeze beginning on May 1, 2020.\138\
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    \138\ Although the agency-wide hiring freeze started on May 1, 
2020, USCIS' FOD initiated a hiring freeze in December 2019 and 
USCIS' SCOPS Directorate did the same starting in February 2020.
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    USCIS lifted the agency-wide hiring freeze in March 2021. With the 
hiring freeze lifted, USCIS was able to begin hiring personnel in an 
effort to return to pre-pandemic staffing levels. Initial hiring was 
largely internal in order to fill promotional vacancies. Following that 
initial hiring, USCIS posted public job announcements to hire from 
outside USCIS. This effort's impact is not realized immediately, as it 
is lengthy, time-consuming, and ongoing. The hiring process entails 
posting the job announcement, reviewing resumes, providing qualified 
candidates' information to the hiring office, conducting assessments 
and interviews, making and approving selections, and completing 
background checks prior to a new employee entering on duty. New hires 
then go through orientation, several weeks of basic training, duty-
specific training, and mentoring.\139\ The entire process from entering 
on duty to a new hire reaching full proficiency may take several 
months.
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    \139\ See USCIS, DHS, ``Training,'' https://www.uscis.gov/about-us/careers/training (last updated Jan. 2, 2020).
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    Hiring new personnel continued to be a USCIS priority in 2023 in 
order to help reduce backlogs and meet operational requirements. When 
DHS issued the 2022 TFR on May 4, 2022, USCIS had approximately 18,500 
employees. USCIS ended 2022 with 19,983 staff, and staffing levels grew 
to 20,631 by June 30, 2023.
    As discussed previously, from FY 2021 to FY 2023, USCIS increased 
the number of FTEs adjudicating EAD applications from 336 FTEs to 630 
FTEs, an 87.5-percent increase.\140\ However, a large portion of the 
FTE increase for EADs was dedicated to initial C08 EAD applications due 
to the 30-day processing requirement. As a result, USCIS was unable to 
divert resources to other categories, such as renewal EAD applications 
in the auto-extension categories. From FY 2021 to FY 2023, USCIS 
increased the number of FTEs adjudicating initial C08 EAD applications 
by approximately 480 percent.\141\
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    \140\ An FTE is an approximation of the number of hours of labor 
that make up the equivalent of one full-time employee. See fn. 123 
in section III.A.4 of this preamble.
    \141\ As previously discussed, USCIS ISOs spent 68,000 hours on 
C08 initial EAD applications in FY 2021, 116,000 hours in FY 2022, 
and 361,000 hours in FY 2023.
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    In short, from FY 2021 to FY 2023, USCIS increased the number of 
FTEs dedicated to adjudicating EAD applications by 87.5 percent. 
However, this significant increase in personnel performing EAD 
adjudications has not been sufficient to address the surge in 
applications. USCIS expects a continued FTE shortfall in the short term 
that will prevent USCIS from adjudicating renewal EAD applications in 
time to prevent a temporary lapse in employment authorization for 
approximately 800,000 applicants during the 2-year period beginning May 
2024.
3. Issuance of Final Fee Rule
    USCIS is primarily funded by fees charged to applicants and 
petitioners for the adjudication of immigration and naturalization 
benefits requests and is authorized, by law, to recover the full cost 
\142\ of all adjudications and naturalization services.\143\ USCIS 
calculates and proposes fees to recover the full cost of operations 
associated with adjudicating immigration benefit requests as authorized 
by section 286(m) of the INA, 8 U.S.C. 1356(m). USCIS last adjusted its 
fee schedule in December 2016, including the fees for EAD applications, 
although the mandated biennial fee reviews indicate an urgent need to 
update USCIS filing fees.\144\ However, DHS until recently has been 
unable to update the fee structure, as explained below, and the current 
2016 fee structure, including the Form I-765 fee of $410 per 
adjudication, has been insufficient to recover the full cost of USCIS 
operations, thus leading to the fiscal troubles previously 
described.\145\
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    \142\ Full costs of providing all adjudication and 
naturalization services, includes support costs such as physical 
overhead, information technology management and oversight, human 
resources, national security vetting and investigations, accounting 
and budgeting, and legal services. See 88 FR 402, 417 (Jan. 4, 2023) 
(``2023 Fee Rule NPRM'').
    \143\ See INA sec. 286(m), 8 U.S.C. 1356(m) (authorizing DHS to 
charge fees for adjudication and naturalization services at a level 
to ``ensure recovery of the full costs of providing all such 
services, including the costs of similar services provided without 
charge to asylum applicants or other immigrants''). This contrasts 
with congressional appropriated agencies, whose budgets are not 
directly impacted by fluctuations in fee revenue.
    \144\ See 81 FR 73292 (Oct. 24, 2016) (``2016/2017 Fee Rule''). 
Under the Chief Financial Officers Act of 1990 (``CFO Act''), 
codified at 31 U.S.C. 901-03, and under the Office of Management and 
Budget (OMB) Circular A-25, USCIS must conduct biennial reviews of 
the non-statutory fees deposited into USCIS' fee account. The 
primary objective of a fee review is to determine whether 
immigration and naturalization benefit fees will generate sufficient 
revenue to fund the anticipated operating costs associated with 
administering the nation's legal immigration system and to propose 
the necessary adjustments.
    \145\ See 88 FR 402, 405 (Jan. 4, 2023).
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    In the spring of 2020, in the wake of the COVID-19 pandemic, USCIS 
revenue dropped by 40 percent in April and an additional 25 percent in 
May from the forecasted collections. That created a possibility that 
USCIS might violate statutory anti-deficiency requirements and led to 
dramatic cuts in spending through the last half of FY 2020, a hiring 
freeze, and planned furloughs if revenue did not increase.\146\
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    \146\ See 88 FR 402, 426 (Jan. 4, 2023).
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    Towards the end of June and July 2020, revenue began to return to 
normal levels and, in conjunction with major budget cuts, allowed USCIS 
to avoid the furloughs. In FY 2021, USCIS instituted 32 percent cuts to 
non-payroll expenses, continued the hiring freeze through April 2021, 
and did not fund enhancements. While USCIS' carryover funding has 
stabilized, USCIS is still enduring the effects of those 32 percent 
budget cuts.\147\
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    \147\ See 88 FR 402, 426 (Jan. 4, 2023).
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    DHS issued a final rule on August 3, 2020, to adjust the USCIS fee 
schedule by a weighted average of 20 percent, reflecting the results of 
the FY 2019/2020 USCIS fee review.\148\ DHS

[[Page 24642]]

estimated an average annual USCIS deficit of $1,035.9 million.\149\ The 
rule was scheduled to become effective on October 2, 2020.\150\ 
However, USCIS was not able to implement the fees set out in the 2020 
fee rule because it was enjoined by two Federal district courts.\151\
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    \148\ See 85 FR 46788 (Aug. 3, 2020) (``2020 Fee Rule''). The 
final rule was issued after DHS has published a proposed rule. See 
84 FR 62280 (Nov. 14, 2019).
    \149\ See 85 FR 46788, 46794 (Aug. 3, 2020).
    \150\ See 85 FR 46788 (Aug. 3, 2020).
    \151\ Immigrant Legal Res. Ctr. v. Wolf, 491 F. Supp. 3d 520 
(N.D. Cal. 2020) (``ILRC''); Nw. Immigrant Rights Project v. USCIS, 
496 F. Supp. 3d 31 (D.D.C. 2020) (``NWIRP'').
---------------------------------------------------------------------------

    On January 31, 2024, DHS published a new Fee Rule to cover the 
increased cost of adjudicating benefit requests.\152\
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    \152\ See U.S. Citizenship and Immigration Services Fee Schedule 
and Changes to Certain Other Immigration Benefit Request 
Requirements, proposed rule, 88 FR 402, 492 (Jan. 4, 2023); and U.S. 
Citizenship and Immigration Services Fee Schedule and Changes to 
Certain Other Immigration Benefit Request Requirements, final rule, 
89 FR 6194 (Jan. 31, 2024).
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    As explained in section III.B.2 of this preamble, prior to 
finalizing the Fee Rule, a USCIS endured a lengthy hiring freeze that 
left thousands of positions unfilled for an extended period. Even 
though the hiring freeze ended on March 31, 2021, USCIS was constrained 
for a prolonged period by the fee levels in the 2016 Fee Rule. USCIS is 
working diligently to backfill vacant positions and hire for new ones. 
However, the Federal recruitment, hiring, and vetting processes take 
many months followed by onboarding, basic training, and several weeks 
of form-specific training and mentoring. Incoming receipts have 
exceeded the agency's gains through hiring, and those hiring gains have 
been limited by insufficient revenue.\153\
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    \153\ From FY 2021 through FY 2022, USCIS received a range of 
approximately 2.3 to 2.6 million EAD applications (seeking both 
initial EADs and renewal of initial EADs) each fiscal year. In FY 
2023, this figure increased to approximately 3.5 million. This 
increase in EAD applications contributed to the formation of 
backlogs, as discussed further in section III.C.1 of this preamble.
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4. Prioritized Adjudication of Employment-Based I-485 Adjustment 
Applications
    Another area in which USCIS is actively prioritizing its workload 
is employment-based adjustment of status applications, which has 
downstream effects on EAD application adjudications, particularly those 
based on a pending adjustment of status application (C09). Since 
employment-based adjustment of status applicants are eligible for 
employment authorization based on the pendency of the adjustment of 
status application, the number of such applications filed with USCIS 
and the duration of their pendency directly impact the number of 
initial and renewal EAD applications filed. At the start of FY 2021, 
there were approximately 126,000 employment-based adjustment of status 
applications pending with USCIS. Approximately 313,000 employment-based 
adjustment of status applications were received during FY 2021. USCIS 
typically processes approximately 120,000 employment-based adjustment 
of status applications each year,\154\ which generally corresponds with 
the number of available employment-based immigrant visas minus the 
number of such visas issued by Department of State annually. However, 
in FY 2021, FY 2022, and FY 2023, additional employment-based visas 
became available because of unusually low visa usage in the family-
sponsored preference categories due in part to consular closures during 
the COVID-19 pandemic.\155\ In response, USCIS prioritized processing 
of employment-based adjustment of status applications to maximize usage 
of available visas. By the end of FY 2021, USCIS had processed and 
approved approximately 175,000 employment-based adjustment of status 
applications, an increase of approximately 50 percent above the typical 
baseline.\156\ USCIS continued this prioritization in FY 2022, 
approving more than 220,000 employment-based adjustment of status 
applications, and in FY 2023, where preliminary estimates show that 
USCIS approved more than 145,000 such applications. However, at the 
start of FY 2024 approximately 180,000 employment-based adjustment of 
status applications remained unadjudicated, including approximately 
122,000 impacted by priority date retrogressions that may leave them 
pending for many years and thereby eligible for C09 EADs during this 
extended period.\157\
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    \154\ See Office of Immigration Statistics, DHS, ``2021 Yearbook 
of Immigration Statistics,'' Table 7, ``Persons Obtaining Lawful 
Permanent Resident Status by Type and Major Class of Admission: 
Fiscal Years 2012 2021,'' https://www.dhs.gov/sites/default/files/2023-03/2022_1114_plcy_yearbook_immigration_statistics_fy2021_v2_1.pdf (last 
visited Nov. 14, 2023).
    \155\ Family-sponsored visas that remain unused at the end of 
the fiscal year are made available in the subsequent fiscal year to 
employment-based categories. See INA sec. 201(d); 8 U.S.C. 1151(d); 
see also USCIS, DHS, Archive, ``Fiscal Year 2022 Employment-Based 
Adjustment of Status FAQs'' (last reviewed/updated Aug. 26, 2022), 
https://www.uscis.gov/archive/fiscal-year-2022-employment-based-adjustment-of-status-faqs.
    \156\ See USCIS, DHS, News Release, ``USCIS Announces FY 2021 
Accomplishments'' (Dec. 16, 2021), https://www.uscis.gov/newsroom/news-releases/uscis-announces-fy-2021-accomplishments (last viewed 
Nov. 27, 2023).
    \157\ For more information on visa retrogression, see https://www.uscis.gov/green-card/green-card-processes-and-procedures/visa-availability-priority-dates/visa-retrogression (last accessed Dec. 
7, 2023). In the interest of reducing the burden on both the agency 
and the public, USCIS has implemented multiple increases of the 
maximum validity period for initial and renewal EADs issued to 
applicants for adjustment of status under sec. 245 of the INA, 8 
U.S.C. 1255, as described in section III.B.1 of this preamble. 
USCIS' return to its processing goal of 3 months for EAD renewal 
applications is critically important for applicants facing visa 
retrogression, as they may require multiple renewals.
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    To the extent possible, USCIS is committed to prioritizing 
adjudicating employment-based adjustment of status applications to 
utilize the available visa numbers each fiscal year.\158\ In turn, many 
applicants are relieved from filing renewal EAD applications, because 
approval of the adjustment of status application grants the noncitizen 
lawful permanent resident status such that they are employment 
authorized incident to status, and leads to issuance of a Permanent 
Resident Card, an acceptable Form I-9 document.\159\ Therefore, the 
more adjustment of status applications USCIS is able to process and 
approve, the fewer C09 renewal EAD applications USCIS will receive, 
thereby reducing the number of EAD renewal filings overall. In the 
interim, urgent action is needed to address the growing number of 
renewal EAD applicants who may soon experience a gap in their 
employment authorization and/or EAD because of USCIS' predicted but 
unprecedented renewal EAD processing times.
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    \158\ While the INA provides that unused employment-based visas 
allocated to a given fiscal year are made available in the 
subsequent fiscal year to family-sponsored preference categories, 
those visas are effectively lost due to other provisions that have 
the effect, after accounting for the number of immigrant visas used 
by immediate relatives of U.S. Citizens (among others), of setting 
the number of family-sponsored preference visas in a fiscal year at 
226,000. See INA sec. 201(c) and (d); 8 U.S.C. 1151(c) and (d). To 
avoid the loss of unused employment-based immigrant visas, USCIS 
prioritizes employment-based adjustment of status applications over 
most other applications, including EAD renewal applications.
    \159\ See 8 CFR 274a.12(a)(1).
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5. Issued Guidance Stating That Spouses of E and L Nonimmigrants Are 
Employment Authorized Incident to Status
    In March 2022, USCIS issued policy guidance stating that spouses of 
E \160\

[[Page 24643]]

and L \161\ nonimmigrants were authorized to work incident to status 
and did not need to obtain an EAD in order to seek employment.\162\ 
This new policy resulted in reduced initial and renewal EAD 
applications by these noncitizen spouses. During the 12 months 
preceding this policy update, between March 1, 2021, and February 28, 
2022, USCIS received an average of 700 A17 (spouse of E nonimmigrant) 
and 1,500 A18 (spouse of L nonimmigrant) EAD applications per month. 
Between March 1, 2022, and September 30, 2023, after the policy began 
to take effect, USCIS received an average of 220 A17 and 350 A18 EAD 
applications per month. In FY 2023, USCIS received an average of 160 
A17 and 90 A18 EAD applications per month. Therefore, this policy 
resulted in a reduction of about 2,000 initial and renewal EAD 
applications per month.
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    \160\ See INA sec. 101(a)(15)(E), 8 U.S.C. 1101(a)(15)(E) 
(providing that a noncitizen entitled to enter the United States 
under and in pursuance of the provisions of a treaty of commerce and 
navigation between the United States and the foreign state of which 
the noncitizen is a national, (or, in the case of a noncitizen who 
acquired the relevant nationality through a financial investment and 
who has not previously been granted status under this subparagraph, 
the foreign state of which the noncitizen is a national and in which 
the noncitizen has been domiciled for a continuous period of not 
less than 3 years at any point before applying for a nonimmigrant 
visa under this subparagraph), and the spouse and children of any 
such noncitizen if accompanying or following to join such alien.).
    \161\ See INA sec. 101(a)(15)(L); 8 U.S.C. 1101(a)(15)(L) 
(providing that a noncitizen who, within 3 years preceding the time 
of his application for admission into the United States, has been 
employed continuously for one year by a firm or corporation or other 
legal entity or an affiliate or subsidiary thereof and who seeks to 
enter the United States temporarily in order to continue to render 
his services to the same employer or a subsidiary or affiliate 
thereof in a capacity that is managerial, executive, or involves 
specialized knowledge, and the noncitizen spouse and minor children 
of any such noncitizen if accompanying him or following to join 
him'').
    \162\ See USCIS, DHS, Policy Alert (PA-2022-11), ``Documentation 
of Employment Authorization for Certain E and L Nonimmigrant 
Dependent Spouses'' (Mar. 18, 2022) https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20220318-EmploymentAuthorization.pdf.
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6. Permitted Certain Asylum Applicants To Electronically File EAD 
Applications
    In January 2023, USCIS announced that certain asylum applicants 
were now eligible to electronically file applications for EADs in the 
C08 category.\163\ This allowed applicants to submit their 
applications, check the status of their case, and receive notices from 
USCIS online, thus reducing the operational costs associated with paper 
applications such as scanning, manual data entry, and shredding. These 
cost savings have allowed resources to be used elsewhere, including 
funding new positions and overtime. Offering the option to file EAD 
applications online has made the process more efficient, secure, and 
convenient for EAD applicants and increased operational efficiencies 
for USCIS.
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    \163\ See USCIS, DHS, ``Asylum Applicants Can Now File Form I-
765 Online,'' https://www.uscis.gov/newsroom/alerts/asylum-applicants-can-now-file-form-i-765-online (last accessed Dec. 7, 
2023).
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7. Alternative Backlog Reduction Method Considered But Not Implemented: 
Changing the Adjudication of EAD Renewal Applications To Prioritize 
Adjudication by the Expiration Date of an Applicant's 180-Day Automatic 
Extension
    In addition to the backlog reduction efforts described in section 
III.B of this preamble, USCIS explored the possibility of changing the 
order of renewal EAD adjudications from a general First in First Out 
(FIFO) processing order \164\ to a processing order that would 
prioritize adjudication based on the expiration date of the applicant's 
180-day automatic extension period. After careful consideration, USCIS 
has determined that this option was not operationally feasible. The 
primary reasons are the manual effort required to identify and assign 
cases to officers based on when an individual's previous employment 
authorization expires, the volume of impacted cases, and the inability 
to surge additional resources to implement such a change.
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    \164\ Under a FIFO processing order, applications are generally 
reviewed in the order in which they are received.
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    Regarding the manual effort required to identify when the EAD 
associated with a renewal case expires, there is currently no system-
based way to assign work based on expiring employment authorization. 
This means that, although cases can be tracked online using existing 
systems, the act of delivering those cases based on expiration dates to 
an officer requires that they be manually assigned. Additionally, as 
the categories of renewal applications are filed and adjudicated in a 
mix of paper and electronic formats, records staff must physically 
locate each individual paper file. EAD applications that are paper 
files are generally organized and assigned by receipt date on file room 
shelves, so any attempt to manually identify when the EAD associated 
with a renewal case expires would require physically tabbing through 
all files received on the same given day and for the same filing 
category. Multiplying that effort by the hundreds of thousands of 
pending renewal EAD applications would cause significant inefficiencies 
for both adjudications and records staff, diverting resources further 
away from other tasks, in turn creating new backlogs. As of November 
2023, approximately 467,000 thousand EAD applications pending with 
SCOPS (44 percent) remained in paper files.
    Even with respect to electronically filed renewal EAD applications, 
it is currently not possible to assign cases electronically by 
expiration date. USCIS would have to do so manually, using spreadsheets 
to log and identify all pending EAD renewal applications and then 
document and sort each case by date of EAD expiration. USCIS would then 
need to identify each application in the system and then manually route 
each EAD application to be assigned for pre-processing and 
adjudication.\165\ The task of manually assigning work for both pre-
processing and adjudication would take additional time and interfere 
with USCIS' overall productivity until the system can be modified to 
accommodate a new process for prioritizing and assigning work. As 
discussed below, it would take at least one year to modify the system 
to re-prioritize this workload.
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    \165\ Before most applications and petitions are assigned to an 
officer for adjudication, they are pre-processed, meaning the 
information contained with the case is ingested, vetted, and 
verified, and then the case is routed to the appropriate workflow 
for adjudication.
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    In addition, the information technology resources required to 
modify the system in this manner and the time it takes to develop, 
test, and implement an automated assignment process make it infeasible 
to reprioritize the workload in the system in time to prevent the 
renewal EAD expirations beginning in May 2024. To implement this 
process in USCIS' Electronic Immigration System online system, it would 
take the USCIS Office of Information Technology approximately 6 to 9 
months of development work and an additional 3 months for beta testing 
and deployment. In addition, changes would need to be made to the 
process by which cases are selected for adjudication in the case 
management system used by USCIS to process immigration benefit 
requests.
    Finally, prioritizing renewal EAD applications based on the 
expiration of the 180-day automatic extension periods versus a general 
FIFO processing order would lead to the inequitable result that 
applicants who filed their renewal EAD applications right before the 
expiration of their EADs could be prioritized over applicants who filed 
their renewal EAD applications according to USCIS' recommended filing 
period in advance of their EAD expiration date. Such prioritization 
could incentivize more applicants to file their renewal EAD 
applications close to the expiration of their EADs, as their 
applications would effectively be expedited over other applications 
filed up to 6 months in advance of expiration. Should that occur, USCIS 
and the public would

[[Page 24644]]

become more reliant on automatic extensions to help minimize the 
problem of gaps in employment authorization and/or valid documentation 
instead of the preferred solution of maintaining the current processing 
order, continuing to pursue additional processing efficiencies, and 
temporarily extending the automatic extension period to up to 540 days 
in this TFR.

C. The Need To Increase the Automatic Extension Period From 180 Days to 
540 Days

1. EAD Application Processing Backlogs
    USCIS relies on a combination of internal processes and plans to 
work to reduce backlogs.\166\ Although USCIS has been diligently 
implementing the backlog mitigation efforts discussed in section III.B 
of this preamble in order to reduce renewal EAD application processing 
times, USCIS is unable to achieve its target 3-month processing goal or 
significantly reduce the EAD renewal processing times to below 180 days 
due to the volume of pending EAD applications, new EAD filings that 
USCIS continues to receive, and time needed to increase staffing levels 
to meet existing demands.
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    \166\ The primary way staffing for backlog reduction has taken 
place is through hiring based on fee-funded receipts, improved 
efficiencies to current processes, and some appropriations from 
Congress.
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    As of February 2024, USCIS had approximately 439,000 pending 
renewal EAD requests in the categories eligible for automatic 
extension,\167\ and received an average of approximately 52,800 
additional automatic extension-eligible renewal EAD applications per 
month in FY 2023.\168\ These additional renewal applications are adding 
to the current backlog, given that USCIS currently completes 
approximately 49,100 automatic extension-eligible renewal EAD 
applications per month.\169\
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    \167\ The vast majority of applicants filing renewal EAD 
applications and who are eligible for the automatic extension of 
EADs under 8 CFR 274a.13(d) fall into three filing categories: (1) 
noncitizens who have properly filed applications for asylum and 
withholding of deportation or removal (C08); (2) noncitizens who 
have filed applications for adjustment of status to lawful permanent 
resident under section 245 of the INA, 8 U.S.C. 1255 (C09); and (3) 
noncitizens who have filed applications for suspension of 
deportation under section 244 of the INA (as it existed prior to 
April 1, 1997), cancellation of removal pursuant to section 240A of 
the INA, 8 U.S.C. 1229b, or special rule cancellation of removal 
under section 309(f)(1) of the Illegal Immigration Reform and 
Immigrant Responsibility Act of 1996 (C10). In FY 2023, these three 
filing categories made up nearly 61 percent of the renewal EAD 
receipts filed in categories eligible for the automatic extension of 
employment authorization. Broken down further among these three 
categories: the C08 category comprised approximately 41 percent of 
the renewal EAD receipts filed in categories eligible for the 
automatic extension, while the C09 category comprised approximately 
10 percent and the C10 comprised approximately 10 percent.
    \168\ In FY 2023, USCIS received a total of approximately 
633,000 renewal EAD applications in the categories eligible for 
automatic extension, which averages to approximately 52,800 filings 
per month.
    \169\ Based on current processing times, many of the 534,000 
currently pending renewal EADs will remain pending through the end 
of FY 2024. These applications generally do not add to the number of 
renewal applicants who will lose employment authorization in May 
2024 because most of the pending renewal applications were filed 
under the 2022 TFR and still benefit from the 540-day automatic 
extension period.
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    In FY 2023, the 80th percentile processing time for all renewal EAD 
applications was 14.2 months. For those automatic extension-eligible 
renewal applicants, as of February 2024, the 80th percentile processing 
time was 14.5 months.\170\ Given these processing times and USCIS' EAD 
adjudication rates, DHS projects that, between May 2024 to March 2026, 
approximately 800,000 renewal applicants eligible for an automatic 
extension will exceed the 180-day automatic extension period unless 
this Temporary Final Rule is issued.
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    \170\ 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 Nov. 14, 2023).
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2. Impact of Long Processing Times for Renewal EAD Applications
    For the reasons discussed in section III.A of this preamble, the 
dramatic increase in EAD applications and associated operational 
challenges were caused by a number of external developments that 
constrained USCIS' ability to dedicate sufficient resources to 
processing renewal EAD applications. As a result, the 180 days of 
additional employment authorization and/or EAD validity under 8 CFR 
274a.13(d) are insufficient. After the additional 180 days are 
exhausted, many applicants will still be waiting for their renewal EAD 
applications to be approved. These applicants will experience a lapse 
in their employment authorization and/or EAD validity while their 
renewal applications remain pending.
    Without immediate intervention, DHS estimates that the situation 
will dramatically worsen over time, as each month thousands of 
additional renewal EAD applicants will be at risk of losing their 
employment authorization and/or EAD validity despite the 180-day 
automatic extension period currently provided by regulation.
    USCIS projects that approximately 800,000 individuals could lose 
employment authorization between May 2024 and March 2026 in the absence 
of this TFR.\171\ In May 2024, 3,000 renewal applicants, the majority 
\172\ of whom are in the C08 pending asylum applicant category, are 
projected to experience a gap in their employment authorization and/or 
EAD validity. The number of applicants who could lose employment 
authorization and/or EAD validity each month will rapidly increase to 
12,000 during July, and peaking at more than 60,000 during November 
2025, unless immediate action is taken to remedy the situation.
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    \171\ See section V.B.2., Table 7, TFR Future Population 
Projections by Month, Rounded to Thousands.
    \172\ See section V.B.2., Table 6A. EADs that could lapse in the 
absence of the TFR, by Class and Percent Variation.
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    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. By statute, asylum applicants 
cannot be approved for initial EADs until their asylum applications 
have been pending for 180 days.\173\ This initial wait time exacerbates 
the often-precarious economic situations asylum seekers may be in as a 
result of fleeing persecution in their home countries. 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 work 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 their authorization to work.
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    \173\ See INA sec. 208(d)(2), 8 U.S.C. 1158(d)(2).
---------------------------------------------------------------------------

    Continuation of employment authorization and/or EADs is also a 
requirement for their employers who must comply with Form I-9 
reverification requirements in order to continue to employ these 
employees.\174\ In addition, some employers, notwithstanding possible 
violation of section 274B of the INA, 8 U.S.C. 1324b

[[Page 24645]]

(governing unfair immigration-related employment practices), may be 
hesitant to hire asylum seekers in the first place if it appears 
maintaining their employment will be difficult due to potential lapses 
in employment authorization.
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    \174\ See 8 CFR 274a.2(b)(1)(vii).
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    Continuous employment authorization and documentation during the 
pendency of an asylum application is vital for asylum seekers in the 
United States to access housing, food, and other necessities. In 
addition, asylum seekers may need income from employment to access 
medical care, mental health services, and other resources, as well as 
to access legal counsel in order to pursue their claims before USCIS or 
EOIR. 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. The 
physical harm experienced by many asylum seekers frequently 
necessitates continuous medical care for extended periods of time. 
Finally, the purpose for which asylum seekers came to the United States 
is to seek long-term protection by receiving asylum.
    In addition, having unexpired employment authorization and EADs is 
necessary for certain noncitizens such as asylum applicants and TPS 
beneficiaries when they apply for benefits that require proof of 
identity or immigration status. The only acceptable document available 
to some noncitizens such as asylum applicants and TPS beneficiaries to 
establish identity for other purposes, such as obtaining a REAL ID-
compliant driver's license or identification card, may be an unexpired 
EAD.\175\ REAL ID-compliant driver's licenses as well as identification 
cards are used for other official purposes including access to Federal 
facilities and boarding federally regulated commercial aircraft.\176\ 
Without an unexpired EAD, certain classes of noncitizens would not be 
able to apply for REAL ID-compliant driver's licenses and IDs.
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    \175\ 6 CFR 37.11(c).
    \176\ REAL ID Act of 2005, Public Law 109-13, div. B, Title II, 
Sec. 201(3) (May 11, 2005).
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    DHS is aware of the importance of employment authorization and 
evidence of employment authorization for applicants' and their 
families' livelihoods, as well as their U.S. employers' continuity of 
operations and financial health. DHS also is cognizant of the potential 
detrimental impact that gaps in employment authorization may have on an 
applicant's eligibility for future immigration benefits should the 
applicant, e.g., inadvertently engage in unauthorized employment during 
the gap,\177\ and on their U.S. employers who must examine unexpired 
documents that evidence their employees' employment eligibility and 
attest that their employees are authorized to work in the United 
States.\178\ DHS also acknowledges that the substantial increase in 
backlogs and prolonged processing times for renewal EAD applications 
are not the fault of applicants, but nonetheless will have significant 
adverse consequences for applicants, their families, and their 
employers in the absence of this TFR.
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    \177\ With certain exceptions, if a noncitizen continues to 
engage in or accepts unauthorized employment, the individual may be 
barred from adjusting status to that of a lawful permanent resident 
under INA 245. See INA secs. 245(c)(2) and (8), 8 U.S.C. 1255(c)(2) 
and (8).
    \178\ See, e.g., INA sec. 274A(b)(1), 8 U.S.C. 1324a(b)(1), 8 
CFR 274a.2(a)(3).
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3. The Current Automatic Extension Period of 180 Days Must Be 
Temporarily Increased to 540 Days
    DHS has determined that the automatic extension period of up to 180 
days at 8 CFR 274a.13(d) is currently insufficient to meet the original 
purpose for which it was implemented: to prevent the occurrence of gaps 
in employment authorization and documentation for eligible 
applicants.\179\ Although USCIS has significantly increased staffing as 
well as case completions, these gains have been outstripped by the 
increased volume of receipts and other operational issues. As a result, 
USCIS is unable to significantly increase its rate of completion in the 
immediate term and, therefore, is currently unable to meaningfully 
reduce the volume of pending cases while also keeping pace with the 
inflow of renewal EAD filings. While USCIS will continue to explore and 
implement ways to improve adjudicative efficiencies in the short and 
long term, USCIS expects that its substantial renewal EAD backlogs will 
continue in the immediate future. This temporary circumstance has 
created an 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.
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    \179\ See Retention of EB-1, EB-2, and EB-3 Immigrant Workers 
and Program Improvements Affecting High-Skilled Nonimmigrant Workers 
final rule, 81 FR 82398, 82405 (Jan. 17, 2017) (``To prevent gaps in 
employment for such individuals and their employers, the final rule 
provides for the automatic [180-day] extension of EADs (and, where 
necessary, employment authorization) upon the timely filing of a 
renewal application.'').
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a. Reduce Backlogs
    As stated above, USCIS received an average of approximately 52,800 
automatic extension-eligible EAD applications per month in FY 2023, and 
completes approximately 49,100 such requests per month, leading to the 
growing backlog.\180\ The 80th percentile processing time for the 
automatic extension categories combined as of February 2024 was 14.5 
months. Based on current incoming volumes and completions, USCIS 
projects that this backlog will hold steady, if not slightly increase, 
in the next 6 months. USCIS began to hire following the end of the 
hiring freeze associated with the fiscal impacts of COVID-19 and the 
potential furlough, both of which contributed to higher-than-average 
attrition. The hiring and training processes are lengthy, but USCIS is 
continuing to grow and see the increases in completions associated with 
improved staffing. Additionally, the agency continues to refine and 
expand the use of systems to improve processing efficiency.
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    \180\ See section V.B.2, Table 6A., EADs that could lapse in the 
absence of the TFR, by Class and Percent Variation.
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    Based on the growth of receipts for renewal EAD applications in the 
past year \181\ and USCIS' projection of similar growth, DHS believes 
that a temporary increase of 360 days (beyond the 180-day period) for a 
total of 540 days (approximately 18 months) is an appropriate increase 
of the automatic extension period to mitigate the risk that a majority 
of eligible applicants will experience a lapse in employment 
authorization or EAD validity, consistent with the purpose of the 
generally applicable automatic extension provision provided under the 
current regulation.
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    \181\ See section III.A, Table 1C. of this preamble for more 
details.
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    The temporary extension period implemented in this TFR better 
reflects current and potential processing times for renewal EADs and 
should provide USCIS with more time to further increase adjudicative 
staff, implement additional processing efficiencies, and reduce renewal 
EAD processing times to a level that aligns with the current up to 180-
day automatic extension provision. USCIS is committed to mitigating the 
impact of renewal EAD application processing delays on applicants as it 
continues to work to return to its goal of processing renewal EAD 
applications within 3 months.\182\
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    \182\ See USCIS, DHS, ``Reducing Processing Backlogs,'' https://egov.uscis.gov/processing-times/reducing-processing-backlogs (last 
visited Jan. 19, 2024).

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[[Page 24646]]

    To determine how long DHS should provide this temporary increased 
automatic extension period, DHS assessed the pending and incoming 
volume of renewal EAD filings against current USCIS resources. As of 
February 2024, USCIS had approximately 439,000 pending renewal EAD 
requests in automatic extension-eligible categories, and this is 
projected to increase for the near future. To achieve USCIS' processing 
goal of 3 months for EAD renewal applications,\183\ USCIS must keep 
pace with the incoming volume (in other words, complete approximately 
57,500 renewal EAD requests in automatic extension-eligible categories 
per month projected in the 18 month period beginning in May 2024) in 
addition to reducing the pending volume of renewal requests from 
439,000 to 172,500.\184\ USCIS anticipates that the decrease in filings 
for applicants who received an EAD with 5-year validity will provide an 
opportunity to address existing backlogs and improve processing times. 
USCIS currently completes approximately 49,100 automatic-extension 
eligible renewal EAD adjudications per month, averaging 0.23 hours per 
completion. To reduce the expiration counts to near zero by the end of 
the TFR period, USCIS would need to increase completions by 
approximately 4,900 per month, which is about a 10% increase. This 
means that USCIS would need to devote approximately 162,000 officer 
hours a year at 15 minutes per case, or achieve an equivalent increase 
in completions through policy changes, processing enhancements, or 
other means, in order to keep pace with the incoming flow of new 
renewal requests and minimize the number of renewal applicants who may 
lose their employment authorization and/or documentation prior to the 
approval of their EAD applications. As described in section III.C.3.b 
of this preamble, USCIS will continue pursuing other means to increase 
completions and reduce expirations while this TFR is in effect.
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    \183\ See USCIS, DHS, ``Reducing Processing Backlogs,'' https://egov.uscis.gov/processing-times/reducing-processing-backlogs (last 
visited Jan. 19, 2024).
    \184\ USCIS estimates that 172,500 pending requests translates 
roughly to a 3-month processing time, depending on monthly EAD 
renewal application receipts and the number of officer hours devoted 
to processing renewal receipts.
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    Therefore, DHS has concluded that it will authorize a temporary 
360-day increase to the automatic 180-day extension period, for a total 
of 540 days, to individuals who file a renewal EAD application during 
the 540-day period following publication of this rule. DHS will also 
grant the additional 360-day increase to the automatic extension period 
to those with pending renewal applications that were filed after the 
expiration of TFR 2022, that is, on or after October 27, 2023. 
Applicants who file an EAD 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).
    This TFR applies to two groups of applicants. First, the rule 
applies to those renewal applicants eligible for the automatic 
extension who have filed their renewal EAD applications on or after 
October 27, 2023,\185\ which remain pending as of the date this rule 
goes into effect, [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER], 
and whose EAD has not expired or whose current up to 180-day auto-
extension has not yet lapsed, since this group is at imminent or near-
term risk of experiencing a gap in employment authorization and/or 
documentation.\186\ Second, the rule applies to new renewal applicants 
who file their EAD applications during the 18-month period following 
the rule's effective date to avoid a future gap in employment 
authorization and/or documentation.\187\ However, in recognition of 
Congress' clear intent in the INA to prohibit and provide penalties for 
unauthorized employment, including the accountability of employers that 
employ noncitizens who are not authorized to work in the United 
States,\188\ this TFR does not address periods of unauthorized 
employment. In other words, this rule does not cure any unauthorized 
employment that may have accrued prior to issuance of the rule.
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    \185\ Individuals who have filed their renewal EAD application 
on or before October 26, 2023.
    \186\ An individual who filed a renewal EAD application on or 
after October 27, 2023, but whose application was denied prior to 
the publication date of this rule, no longer has a pending 
application and therefore will not receive the additional automatic 
extension.
    \187\ Providing a set amount of additional automatic extension 
time for a set 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, since the temporary 
solution is clear, can be relied upon, can be planned for, and 
otherwise operates in the same way as the existing automatic 
extension described in 8 CFR 274a.13(d)(1) and the 2022 TFR.
    \188\ See generally INA sec. 274A, 8 U.S.C. 1324a.
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    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.\189\ As 
such, this TFR will take effect on April 8, 2024, and will be removed 
from the CFR on September 20, 2027, that is, approximately 3 years and 
6 months (or 1,260 days) after the rule takes effect, although no new 
beneficiaries will receive a 540-day automatic extension after 
September 30, 2025. Further, as is consistent with current guidance, 
applicants should file a renewal EAD application no earlier than 180 
days prior to the expiration date of their EAD.
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    \189\ 720 days is the amount of time needed to cover the up to 
540-day automatic extension for all EAD renewal applicants eligible 
for the automatic extension, including those who timely filed an EAD 
renewal application on or before September 30, 2025 but whose EAD 
expires within 180 days after September 30, 2025. Such applicants 
could be eligible for the up to 540-day automatic extension, 
beginning on the day their EAD expires.
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b. Improve Future Processing Times and Reduce Filing Volume
    DHS also considered other factors that may further help to reduce 
the renewal EAD application processing times, including the potential 
for additional officers based on a potential increase in filing fee 
revenue while this TFR is in effect, as well as processing efficiencies 
through streamlining certain steps in the processing of renewal EAD 
applications and the policy changes described above. Based on the 
available data on the pending and incoming volume of renewal EAD 
filings, and taking into consideration future variables, such as 
increased adjudicative staff and filing fees, USCIS expects to improve 
its processing times over the coming years.
    Additionally, the automatic extensions provided in this TFR will 
extend through the period in which USCIS expects to see a decrease in 
filings due to the policy change to provide 5-year validity to certain 
categories of EADs. This window of decreased receipts should provide 
USCIS the opportunity to significantly decrease backlogs. Based on the 
conditions in place at the beginning of FY 2024, USCIS projects that 
the implementation of the 5-year-maximum EAD policy will result in a 
significant drop in EAD renewal applicants as of September 27, 2025. 
The largest volume of EAD categories are C08s, C09s, and

[[Page 24647]]

C10s, which have generally been issued 5-year EADs starting on 
September 27, 2023.\190\ This means that EADs in these categories 
issued on or after September 27, 2023, will not be facially expiring 
until on or after September 26, 2028. Thus, DHS projects, as of the 
beginning of FY 2024 that there will be very few EAD renewal applicants 
in these categories after September 27, 2025 (just before the beginning 
of FY 2026), until early FY 2028. 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.
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    \190\ In general, USCIS issued EADs for 2 years in these 
categories prior to September 27, 2023.
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    In addition, the 540-day filing period will ensure that eligible 
EAD renewal applicants who timely file a renewal application will have 
a near term solution and will not experience a lapse in employment 
authorization and/or documentation starting in May 2024, while USCIS 
continues to pursue a long-term solution by soliciting public input and 
fully assessing the effects of policy and operational changes described 
in this preamble.
4. EAD Renewal Applicants at Risk of Experiencing a Gap in Employment 
Authorization or EAD Validity Under This TFR
    The data projection in the Regulatory Impact Analysis (``RIA'') 
indicates that even with the 540-day automatic extension provided in 
this TFR, approximately 260,000 EAD renewal applicants are potentially 
at risk of experiencing a gap in employment authorization or proof of 
employment authorization.\191\ That is, at the baseline and assuming 
that no operational or other policy changes are implemented, of the 
projected 689,000 (lower bound estimate) to 824,000 (upper bound 
estimates) \192\ of renewal applicants who receive a temporary up to 
540-day automatic extension period, about 260,000 renewal EAD 
applicants could still lapse between November 2025 and April 2027.\193\ 
However, this projection is based on data from the beginning of FY 2024 
and the conditions in place at that specific time. Because of several 
variables, these data projections cannot fully take into account the 
complete effect of operational and policy changes described above, 
combined with any future changes and operational shifts (such as hiring 
additional officers or additional technological changes and operational 
shifts that improve processing efficiency) that USCIS plans to 
undertake to reduce EAD processing times.\194\ This TFR will provide 
USCIS with more time to evaluate the effects of the operational changes 
already implemented \195\ and consider and implement additional 
operational, policy, and technological changes that may further improve 
the overall efficiency of USCIS adjudications. Based on current 
projections, this TFR also will ensure that, during the 540 days 
following publication of this TFR, none of the affected applicants are 
expected to experience a gap in employment authorization and/or EAD 
validity because of USCIS processing delays. This TFR will therefore 
address the associated harmful effects that gaps in employment 
authorization and/or documentation will have for applicants, their 
families, their employers, and the economy during that time.
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    \191\ See V.B.2. Table 6 detailing how variation in the inputs 
used to the model a baseline affect the range of results of the 
rule's estimated impacts in the RIA.
    \192\ See V.B.2. Table 6 and Table 7.
    \193\ DHS predicts that, based on the high level of C08 filings 
who received a 2-year validity EAD prior to the policy change 
implementing a 5-year policy, USCIS will experience a spike in 
renewal EAD processing times starting around August 2024 and lasting 
through October 2025 because of a large amount of C08 renewal 
filings. As a result of this spike in processing times, USCIS 
projects that approximately 260,000 renewal EAD applicants could 
lapse between November 2025 and April 2027 if there is no change to 
current conditions.
    \194\ Although these data projections cannot fully take into 
account the complete effect of possible operational and policy 
changes, USCIS does include a sensitivity analysis that considers a 
change in officer output by +/-10 percent and +/-15 percent. All 
other variables remain constant. See Tables 6A and 6B.
    \195\ For example, as explained in section III.B.1. of this 
preamble, USCIS expects that the new 5-year EAD practice implemented 
in September 2023 will cause certain EAD renewal filings in the 
applicable categories to significantly decrease starting in October 
2025 and to remain low until the third quarter of FY 2028. There 
should be very few EADs in the categories covered by the 5-year EAD 
policy with a validity expiration date between September 25, 2025, 
and September 26, 2028. Although the main effects of the 5-year EAD 
policy change will not occur until October 2025, USCIS projects that 
the increased validity periods will lead to a 60 percent reduction 
in volumes, on average, and possibly greater for categories who 
historically file only one EAD renewal to maintain employment 
authorization during the pendency of their primary immigration 
benefit. After October 2025, USCIS, as well as applicants filing for 
renewal of their EADs, will benefit from the long-term effects of 
this policy change as the reduced filing volumes should allow USCIS 
to reduce EAD renewal processing times.
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    As part of the development of this rule, DHS considered whether the 
temporary automatic extension period in the new 8 CFR 274a.13(d)(6) 
should be increased to at least up to 730 days (rather than up to 540 
days). Based on the baseline data projections, DHS believes that 
increasing the automatic extension period to at least up to 730 days 
could ensure that a large part of the approximately 260,000 renewal EAD 
applicants who are currently predicted to experience a gap in 
employment authorization and/or documentation under the 540-day 
automatic extension period would not experience any gaps.
    However, although DHS understands that granting an automatic 
extension of 540-days might not fully resolve the problem, DHS has 
determined to focus on near-term needs of applicants, their families, 
and employers by ensuring that, through this TFR, none of them will 
imminently or in the near-term experience the harmful effects that gaps 
in employment authorization and/or documentation could create. At the 
same time, the rule provides DHS with an additional window during which 
it can consider long-term solutions by soliciting public comments, 
evaluating the effects of ongoing policy and operational changes 
described in this preamble, and continuing to identify new strategies 
and efficiencies in the future.
    Creating a near-term solution with a 540-day extension period is 
furthermore appropriate because longer extension periods would create 
additional complexities for employers. For example, TPS designations 
and associated EAD benefits cannot be granted for longer than 18 months 
(which is approximately 540 days).\196\ If USCIS were to extend the 
automatic EAD extension period beyond 540 days, it would have to create 
a separate provision for TPS-based EAD applicants. Having up to 730 
days of an automatic extension period for one group of EAD renewal 
applicants and 540 days for others increases the risk of confusion as 
employers would be required to understand and adhere to additional 
different extension periods depending on eligibility category on the 
EAD the worker possessed and when the EAD renewal application was 
filed. For example, an employer may have multiple employees who are 
employment authorized under the C08 category but, depending on when 
their EAD renewal application was filed, those employees may have 
different amounts of time for which their employment authorization and 
EAD are automatically extended. Even though they all have employment 
authorization under C08, those employees who filed an EAD renewal 
application before October 27, 2023, would have an automatic extension 
up to 540 days, whereas those who filed on or after October 27, 2023, 
would have an automatic extension up to 730 days. These variables 
increase the risk that an

[[Page 24648]]

employer may make a mistake when verifying employment authorization or 
determining when reverification needs to occur. Because employers may 
face civil money penalties if they do not properly maintain employment 
eligibility verification paperwork or employ a noncitizen without 
employment authorization,\197\ the risk of a mistake stemming from 
different automatic extension periods is not insignificant.
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    \196\ See INA secs. 244(a)(2), (b)(2), (d), 8 U.S.C. 
1254a(a)(2), (b)(2), (d); 8 CFR 244.12.
    \197\ See INA sec. 274A(e)(5), 8 U.S.C. 1324a(e)(5).
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    In addition, DHS currently assesses that it is premature to grant 
an automatic extension for up to 730 days (or approximately 2 years), 
in part because the longer the period of time before an employer has to 
reverify a noncitizen employee whose employment authorization is 
automatically extended, the greater the risk they could unknowingly 
employ someone whose employment authorization has ended.\198\
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    \198\ EAD renewal applications are filed by the noncitizen, so 
employers do not know when or if the application is approved. 
Employers usually must rely on the employee to provide the 
information.
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    Additionally, both employers and applicants are already familiar 
either with the normal 180-day extension or the 540-day extension under 
the 2022 TFR. The 540-day extension provided under the 2022 TFR 
continues to be effective for some applicants until October 15, 2025, 
and having other validity periods in this 2024 TFR may be confusing to 
applicants, employers, and the public at large. For these reasons, and 
because employers would assess the applicability of the auto-extension 
based in part on a non-secure document (such as the Form I-797C, Notice 
of Action), at this time DHS prefers shorter validity periods for 
temporary, non-secure documents.
    Also, operationally, while managing 540- and 730-day extensions 
might be feasible and could mitigate harms projected after October 
2025, the additional complexity, for both USCIS and employers, of 
administering different automatic extension durations could delay 
issuing or implementing this TFR to address imminent lapses in 
employment authorization and EAD validity.
    DHS also believes that the automatic extension period of 540 days 
is appropriate in scope because of the uncertainties in data 
projections. As described above, USCIS' current projections are based 
on factors as they exist as of the beginning of FY 2024 and the 
conditions in place at that specific time. USCIS' projections become 
less certain further into the future because those existing factors 
will be impacted as changes and operational shifts arise. For example, 
over the course of the coming months, processing times may improve 
based on the policy and operational changes described throughout this 
preamble and by gaining additional adjudicative efficiencies and 
technological changes. As a result, the projection that approximately 
260,000 renewal EAD applicants might experience a lapse in employment 
starting in October 2025 may exceed the actual number. On the other 
hand, there are also unpredictable variables that are out of USCIS's 
control, such as the events that resulted in the need for this very 
rulemaking. Thus, because of these uncertainties, DHS believes it to be 
appropriate to address the imminent and near-term needs of applicants 
and their U.S. employers by implementing an up to 540-day automatic 
extension period for eligible EAD renewal applications properly filed 
during the 540 days after this TFR is published, and to create a 
longer-term solution after soliciting additional input and having had 
the opportunity to fully assess the effects of USCIS policy and 
operational changes described in this preamble.
    Finally, DHS notes that providing a 730-day filing period (i.e., 
the period of time, following publication of this rule, during which 
the timely filing of an EAD renewal application results in an up to 
540-day automatic extension), would not assist those 260,327 EAD 
renewal applicants who could still experience a lapse in their EAD 
validity. This is because the cause of the remaining 260,000 at-risk 
renewal EAD applicants under this TFR is primarily the number of 2-year 
initial asylum application EADs (C08) issued in mid- to late-FY 2023, 
when USCIS substantially increased its production to comply with the 
30-day processing time requirement imposed by the Rosario court 
order.\199\ Based on current data predictions, and if staffing levels 
and adjudicative efficiencies remain unchanged, renewal of these 
initial C08 EADs will be pending longer than the 540-day automatic 
extension period. Thus, extending the filing period to 730 days would 
not assist these applicants and would not have an impact because they 
will already have timely-filed and pending EAD renewal applications. If 
their applications are approved, they generally will be granted a 5-
year EAD and/or employment authorization.
---------------------------------------------------------------------------

    \199\ See Rosario v. USCIS, 365 F.Supp.3d 1156 (W.D. Wash. 
2018).
---------------------------------------------------------------------------

    For these reasons, DHS believes an up to 540-day automatic 
extension period and a 540-day automatic extension filing period are 
appropriate as they are narrowly tailored to serve the imminent short-
term need of eligible EAD renewal applicants and their U.S. employers. 
These periods also allow DHS to consider longer-term solutions 
following receipt of additional input and assess the effect of ongoing 
and future policy and operational changes. If DHS determines that 
future regulatory action would be warranted, DHS may issue another 
rule. DHS welcomes public comment that would inform any potential 
future regulatory actions on this subject, including whether to 
permanently extend the automatic extension period to 540 days, or 
whether a different permanent extension period should be implemented, 
for some or all applicants covered by the automatic extension provision 
on either a temporary or permanent basis.

D. Severability

    In issuing this TFR, it is DHS's intention that the rule's various 
provisions be considered severable from one another to the greatest 
extent possible. For instance, if a court of competent jurisdiction 
were to hold that the automatic extension may not be applied to a 
particular category of renewal EAD applicants or in a particular 
circumstance, DHS would intend for the court to leave the remainder of 
the rule in place with respect to all other covered persons and 
circumstances. DHS's overarching goal is to avoid widescale lapses in 
employment authorization and EAD validity that would result in 
substantial and unnecessary harm to noncitizens who timely filed for 
extensions of employment authorization, their families, their 
employers, and the public at large.

IV. Temporary Regulatory Change: 8 CFR 274a.13(d)(5) and 8 CFR 
274a.13(d)(6)

A. Adding New 8 CFR 274a.13(d)(6)

    With this TFR, DHS is amending 8 CFR 274a.13(d) to add a new 
paragraph (6) that will be in effect temporarily until September 20, 
2027. 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 properly file a renewal EAD application on or after October 27, 
2023, and on or before September 30, 2025 and whose application is 
pending

[[Page 24649]]

during the 18-month \200\ period beginning April 8, 2024, and ending 
September 30, 2025. Automatic extensions of employment authorization 
and/or EAD validity will revert to the up to180-day period for those 
eligible applicants who timely file renewal EAD applications after 
September 30, 2025. The increased automatic extension period will apply 
to eligible renewal applicants who timely file their EAD applications 
on or before the last day of the 18-month period.
---------------------------------------------------------------------------

    \200\ For ease of reference, DHS sometimes refers to the 
approximate period of 18 months. However, the precise number of days 
is 540.
---------------------------------------------------------------------------

    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 renewal EAD request even if 
this date is after September 30, 2025.
    Moreover, 8 CFR 274a.13(d)(6) will remain in the CFR for an 
additional 720 days after this 540-day period, until September 20, 
2027, to ensure that renewal applicants who are already within their up 
to 540-day automatic extension period as of September 30, 2025, 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 (``facially 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 renewal EAD 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).\201\ While the current provision at 8 CFR 274a.13(d)(4), and, 
likewise, the provision in this TFR, do not require that the 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 April 8, 2024, 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 
renewal EAD application before April 8, 2024. However, even Form I-797C 
notices for an EAD application filed after October 26, 2023, that refer 
to a 180-day automatic extension still meet the regulatory 
requirements. Therefore, individuals in the categories covered by this 
rule who are issued Form I-797C notices with a Received Date of October 
27, 2023, through the day preceding April 8, 2024 that refer to a 180-
day extension, along with their qualifying EADs, still receive the 
extension of up to 540 days from the date on the face of the EAD under 
this rule. USCIS will update the web page on the USCIS website that is 
referenced in the current Form I-797C receipt 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 facially expired EAD, is acceptable to show that 
the EAD validity is extended. Employers completing Form I-9 may 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 above-described extension of 
employment authorization and/or EAD validity, in such cases. The 
automatic extension established by this rule applies to EADs as such; 
therefore, if another agency accepts unexpired EADs for any purpose 
(such as establishing identity or, in some situations, immigration 
status), then the agency should generally accept the EADs that are 
automatically extended under this rule. This applies to benefit 
granting agencies that are registered to use the SAVE \202\ program to 
verify immigration status, because SAVE can verify a benefit 
applicant's immigration status using an automatically extended EAD.
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    \201\ As it is currently the case with the up-to 180-day 
automatic extension, if an adjustment of status applicant's (C09) 
EAD card is combined with the advance parole authorization, i.e., 
the applicant is issued a combo card (in this case, the EAD card 
itself has an annotation ``SERVES AS I-512 ADVANCE PAROLE''), 
Similarly, the 540-day automatic extension provided by the 2022 TFR, 
as well as the up-to 540-day automatic extension provided by this 
rule, do not apply to the advance parole part of the applicant's 
combo card.
    \202\ SAVE is a program administered by USCIS and is used by 
Federal, state and local benefit granting agencies to verify the 
immigration status of their benefit applicants in order for the 
agency to determine eligibility for the benefits they administer. 
See https://www.uscis.gov/save (last visited Jan.19, 2024).
---------------------------------------------------------------------------

    This rule does not modify the current reverification 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 
extends the automatic extension period in 8 CFR 274a.13(d) from up to 
180 days to up to 540 days. Therefore, to complete Form I-9 for new 
employment, the employee and employer should use the extended 
expiration date to complete Sections 1 and 2 of the Form I-9 and 
reverify once the automatic extension period expires.\203\ For current 
employment, the employer should update the previously completed Form I-
9 to reflect the extended expiration date based on the automatic EAD 
extension while the renewal is pending and reverify once the automatic 
extension expires.\204\
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    \203\ See 8 CFR 274a.2(b)(1)(vii); see also USCIS, DHS, 
``Automatic Extensions Based on a Timely Filed Application to Renew 
Employment Authorization and/or Employment Authorization Document'' 
https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274/50-automatic-extensions-of-employment-authorization-andor-employment-authorization-documents-eads-in/51-automatic-extensions-based-on-a-timely-filed-application-to-renew-employment-authorization (last visited Oct. 27, 2023).
    \204\ Id.
---------------------------------------------------------------------------

    Under this TFR, 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.\205\
---------------------------------------------------------------------------

    \205\ Therefore, 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.
---------------------------------------------------------------------------

B. Amending 8 CFR 274a.13(d)(5)

    To avoid confusion between the automatic extension period granted 
under 8 CFR 274a.13(d)(5) and period granted under newly added 8 CFR 
274a.13(d)(6), DHS is amending existing 8 CFR 274a.13(d)(5) by revising 
the heading in the paragraph to reflect that the paragraph applies to 
renewal applications properly filed on or before October 26, 2023.\206\
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    \206\ See 8 CFR 274a.13(d)(5) heading.
---------------------------------------------------------------------------

    With this TFR, DHS is not extending or otherwise amending the 
provisions in

[[Page 24650]]

8 CFR 274a.13(d)(5). As explained in the 2022 TFR, the filing period 
for the temporary increase of the automatic extension under 8 CFR 
274a.13(d)(5) ended on October 26, 2023, after which the automatic 
extension period reverted to up to 180 days.\207\ The increased 
automatic extension period under 8 CFR 274a.13(d)(5) was available to 
eligible renewal applicants who had a timely filed renewal EAD 
application pending during the 18-month period beginning May 4, 2022, 
and ending at the end of October 26, 2023, and it remains valid until 
the individual's up to 540-day automatic extension period expires.\208\ 
However, once an individual's up to 540-day automatic extension period 
under 8 CFR 274a.13(d)(5) expires, the individual will not receive any 
additional employment authorization and/or EAD validity under this new 
TFR, because DHS is not extending the effect of 8 CFR 274a.13(d)(5).
---------------------------------------------------------------------------

    \207\ See 87 FR 26614, 26631 (May 4, 2022).
    \208\ For example, if the applicant properly and timely filed 
the EAD renewal application on October 26, 2023, the applicant's 
employment authorization and/or EAD validity lasts up to 540 days 
from the date of expiration printed on the applicant's employment 
authorization and/or EAD, or upon issuance of notification of a 
denial on the renewal EAD request.
---------------------------------------------------------------------------

    Additionally, the 2022 TFR provided that 8 CFR 274a.13(d)(5) would 
remain in the CFR for an additional 720 days after October 26, 2023, 
although the up to 540-day automatic extension period has reverted to 
up to 180 days for individuals who filed a renewal application after 
October 26, 2023.\209\ Therefore, 8 CFR 274a.13(d)(5) will remain in 
the CFR until October 15, 2025. The 2022 TFR explained that retaining 
the paragraph until October 15, 2025, will ensure that applicants who 
are within their up to 540-day automatic extension period on or after 
October 26, 2023, will not lose 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 will be able to take 
full advantage of the up to 540-day period.\210\
---------------------------------------------------------------------------

    \209\ See 87 FR 26614, 26631.
    \210\ See id.
---------------------------------------------------------------------------

    Having both paragraphs 8 CFR 274a.13(d)(5) and 8 CFR 274a.13(d)(6) 
may result in the confusion of employers, applicants, and the public in 
general. Thus, to avoid confusion, DHS is amending 8 CFR 274a.13(d)(5) 
by revising its heading to clearly state that 8 CFR 274a.13(d)(5) only 
applies to renewal applications properly filed on or before October 26, 
2023.

V. Regulatory Requirements

A. Administrative Procedure Act

    This rule is informed and supported by comments on the 2022 TFR, 
which as noted above suggested making the TFR permanent. In addition, 
DHS is issuing this rule without a separate proposed rule describing 
the present emergency, or a delayed effective date. DHS therefore 
invokes the ``good cause'' and other exceptions in the APA. 5 U.S.C. 
553(b)(B) and (d)(3); see also 5 U.S.C. 553(d)(1) (exception for 
delayed effective dates for substantive rules that grant or recognize 
an exemption or relieve a restriction).\211\
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    \211\ Separate from the APA's 30-day delayed-effective-date 
requirements, 5 U.S.C. 553(d), the Congressional Review Act imposes 
a 60-day delayed-effective-date requirement for rules identified at 
5 U.S.C. 804(2), see 5 U.S.C. 801(a)(3). Under both 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, as it does in this rulemaking. See 5 U.S.C. 
553(d)(3) and 808(2).
---------------------------------------------------------------------------

1. Requirements for Establishing Good Cause
    An agency may forgo notice-and-comment rulemaking and a delayed 
effective date when the 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).
    The ``impracticable'' prong of the good cause exception ``excuses 
notice and comment in emergency situations, or where delay could result 
in serious harm.'' \212\ Although the good cause exception is 
``narrowly construed and only reluctantly countenanced,'' \213\ ``it is 
an important safety valve to be used where delay caused by notice and 
comment would do real harm.'' \214\ An agency may find that advance 
notice and comment or a delayed effective date is ``impracticable'' 
when undertaking such procedures would impede due and timely execution 
of important agency functions.\215\ For example, a finding of 
impracticability may be appropriate when an investigation shows that a 
new rule must be put in place immediately to avert a serious safety 
risk to the public.\216\ Courts have held that a determination of 
impracticability ``is inevitably fact-or context-dependent,'' \217\ and 
have acknowledged that the need to avert an imminent ``fiscal calamity 
could conceivably justify bypassing the notice-and-comment 
requirement,'' if, for instance, the agency's finding is supported by 
an adequate record and reflects consideration of alternatives to 
bypassing notice-and-comment procedures.\218\ In determining whether to 
invoke the exception under 5 U.S.C. 553(d)(3) some courts call for the 
agency ``to balance the necessity for immediate implementation against 
the principles of fundamental fairness which requires that all affected 
persons be afforded a

[[Page 24651]]

reasonable time to prepare for the effective date of its ruling.'' 
\219\
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    \212\ Jifry v. FAA, 370 F.3d 1174, 1179 (D.C. Cir. 2004).
    \213\ State of New Jersey v. EPA, 626 F.2d 1038, 1045 (D.C. Cir. 
1980); see also Am. Fed. 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. . .'').
    \214\ U.S. v. Dean, 604 F.3d 1275, 1279 (11th Cir. 2010).
    \215\ See Util. Solid Waste Activities Group v. EPA, 236 F.3d 
749, 754-55 (D.C. Cir. 2001) (``With respect to the 
``impracticable'' ground, 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 [Sec.  553]. . .'') (quoting United States 
Department of Justice, Attorney General's Manual on the 
Administrative Procedure Act 30-31 (1947)).
    \216\ See Util. Solid Waste Activities Grp. v. EPA, 236 F.3d 
749, 754-55 (D.C. Cir. 2001) (citing the Attorney General's Manual 
on the APA (1947).).
    \217\ Mid-Tex Elec. Co-op, Inc. v. FERC, 822 F.2d 1123, 1132 
(D.C. Cir. 1987); Petry v. Block, 737 F.2d 1193, 1203 (D.C. Cir. 
1984) (``But it is clear beyond cavil that we are duty bound to 
analyze the entire set of circumstances. . .''). Courts have 
explained that notice-and-comment rulemaking may be impracticable 
where, for instance, air travel security agencies would be unable to 
address threats posing ``a possible imminent hazard to aircraft, 
persons, and property within the United States,'' Jifry, 370 F.3d at 
1179; if ``a safety investigation shows that a new safety rule must 
be put in place immediately,'' Util. Solid Waste Activities Grp. 236 
F.3d at 755 (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 Southern Mountains, Inc. v. Donovan, 653 F.2d 573, 
581 (D.C. Cir. 1981).
    \218\ See Sorenson Comms., Inc. v. FCC, 755 F.3d 702, 707 (D.C. 
Cir. 2014); Mack Trucks, Inc. v. EPA, 682 F.3d 87, 93-94 (D.C. Cir. 
2012) (acknowledging that good cause may be found when ``an entire 
industry and its customers were imperiled,'' in contrast to a 
situation where the agency seeks to rescue certain third parties 
from the consequences of their own business choices); Mid-Tex Elec. 
Co-op, Inc., 822 F.2d at 1132 (upholding a good cause finding where 
the agency sought to avert ``irremedial [sic] financial consequences 
and regulatory confusion''); Am. Fed'n of Govt. Emp., AFL-CIO v. 
Block, 655 F.2d 1153, 1157 (D.C. Cir. 1981) (concluding that the 
agency's good cause finding was a reasonable response to avoid 
economic harm to certain poultry processors and likely shortages and 
increases in consumer prices); N. Am. Coal Corp. v. Director, Off. 
Of Workers' Comp. Prog., DOL, 854 F.2d 386, 389 (10th Cir. 1988) 
(concluding that ``the loss or delay of medical benefits to many 
eligible coal miners was a real harm and the extension of the filing 
deadline operated as a safety valve to prevent this harm.''); Nat'l 
Venture Capital Ass'n v. Duke, 291 F. Supp. 3d 5, 18 (D.D.C. 2017) 
(reasoning that fiscal injury to an agency may be less likely to 
support a good cause finding than fiscal injury to third parties).
    \219\ N. Arapahoe Tribe v. Hodel, 808 F.2d 741, 752 (10th Cir. 
1987) (finding that the agency's reliance on the good cause 
exception under 5 U.S.C. 553(b) and (d)(3) to be proper given the 
immediate urgency that warranted the imposition of the regulations 
as an interim action). Note that the requirements of Sec.  553(d)(3) 
do not apply in the case of an action covered by section 553(d)(1), 
i.e., a rule which grants or recognizes an exemption or relieves a 
restriction. This is one such rule.
---------------------------------------------------------------------------

    DHS believes that engaging in the APA's notice and comment 
requirement under 5 U.S.C. 553(b) in this situation would impede due 
execution of USCIS' mission and result in real and serious harm to the 
public. As outlined in this preamble, unless DHS takes this action 
immediately, USCIS' lengthy processing times for renewal EAD 
applications will result in hundreds of thousands of renewal EAD 
applicants experiencing gaps in employment authorization and/or EAD 
validity, leading to adverse impacts on the applicants, their families, 
their employers, and their communities. The grave situation that these 
third parties face is not the result of their own actions and is beyond 
their control. Rather, the present situation is the result of several 
circumstances that affected USCIS operations, resulting in significant 
increases to USCIS processing times for several categories of renewal 
EAD applications since the publication of the 2022 TFR.
    DHS believes, as supported by the comments received on the 2022 
TFR,\220\ that this regulation will allow USCIS to immediately avert 
the dire impact the circumstances create for affected renewal EAD 
applicants, their families, and their employers. Accordingly, DHS 
believes that bypassing the ordinary notice and comment procedure and 
the delayed effected date requirement is justified in the totality of 
the circumstances and is consistent with USCIS' statutory mission to 
take regulatory action to administer employment authorization benefits 
effectively,\221\ and is necessary to achieve the purpose of 8 CFR 
274a.13(d).
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    \220\ See section II.C.2 of this preamble.
    \221\ See Homeland Security Act of 2002, Public Law 107-296, 116 
Stat. 2135, sec. 101(b)(1)(F), codified as 6 U.S.C. 111(b)(1)(F). 
USCIS, as a component of DHS, should exercise its 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.
---------------------------------------------------------------------------

2. The EAD Processing Backlog Has Grown Despite USCIS' Best Efforts
    In the middle of FY 2023, EAD application filings began to increase 
substantially. USCIS ultimately received a record-breaking total of 
approximately 3.49 million initial and renewal EAD applications in FY 
2023, which is up from approximately 2.33 million EAD filings in FY 
2022 (October 2021 through September 2022), a 50-percent increase of 
approximately 1.2 million EAD initial and renewal filings. Of these, 
approximately 1.12 million renewal EAD applications were filed in FY 
2023, which was 13 percent higher than the volume received in FY 2022 
(approximately 990,000 applications). Thus, the historic 1 million 
application increase in initial and renewal filings, compounded by the 
lack of fee increase, the adjudicative demands of USCIS' responses to 
global humanitarian crises, and other increases in immigration benefit 
filings, has created an unsurmountable operational strain. This strain 
significantly impacts USCIS' ability to keep pace with the growing 
numbers of applications.
    As explained in detail elsewhere in this preamble, the effects of 
USCIS' previous and current financial strains have unfortunately 
continued through FY 2022 and FY 2023. In particular, the preliminary 
injunction of the 2020 Fee Rule has resulted in USCIS operating with 
insufficient reserves to increase staffing commensurate with increased 
filing rates. If USCIS operates under these conditions, it 
significantly hampers USCIS' agility when reacting to spikes in 
filings.\222\ Thus, although USCIS increased its workforce in FY 2023, 
substantially increased the number of officer hours spent adjudicating 
EAD applications,\223\ and took numerous steps to improve adjudicatory 
efficiency,\224\ it has been unable to sufficiently reduce renewal EAD 
processing times. The problem has been compounded by a litigation 
outcome that requires USCIS to reimplement the 30-day processing 
timeline for initial C08 EADs.\225\ The operational burden on USCIS 
resulting from complying with court orders and reimplementing the 30-
day processing timeline was further strained by the recent surge in 
initial C08 EAD applications: In FY 2023 (October 2022 through 
September 2023) there were approximately 800,000 initial C08 EAD 
applications, which is an increase of approximately 200 percent over 
the approximately 266,000 initial C08 EAD applications filed in FY 
2022. Because adjudicative capacity to date has been unable to keep up 
with the increased rate of filings, in order to comply with the Rosario 
court order and the required 30-day processing timeline, USCIS had to 
prioritize initial C08 EAD applications over other applications, 
including renewal EAD applications, which has negatively affected 
renewal EAD processing times overall.\226\
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    \222\ See ``U.S. Citizenship and Immigration Services Fee 
Schedule and Changes to Certain Other Immigration Benefit Request 
Requirements,'' 88 FR 402, 529 (Jan. 4, 2023) (stating that 
processing times increase, and the case processing backlog grows 
when USCIS does not have sufficient resources to meet its goals).
    \223\ See section III.A.2. of this preamble (as compared to FY 
2021).
    \224\ See section III.B. of this preamble.
    \225\ See Asylumworks v. Mayorkas, 590 F. Supp. 3d 11 (D.D.C. 
2022).
    \226\ See section III.A.2.a, Operational Challenges Associated 
with Initial EAD Application Filings by Pending Asylum Applicants 
(C08).
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    As explained earlier in the preamble, EAD application processing 
times and the number of pending EAD applications have not sufficiently 
improved, despite multiple operational and sub-regulatory efforts that 
USCIS has been implementing. Despite USCIS' best efforts at backlog 
reduction, ongoing and dynamic circumstances, which are outside of 
USCIS' control, have prevented USCIS from keeping up with the 
adjudicatory workload.
    During FY 2024, USCIS has continued to closely monitor the 
automatic extension-eligible renewal EAD caseloads and processing 
times.\227\ These improvements have not yet provided the desired 
reduction in pending EAD applications. For example, Table 2 shows that 
the volume of pending EAD applications has not materially improved in 
FY 2024.\228\ The total number of pending EAD applications at the end 
of February of 2024 is approximately 1.40 million applications, which 
continues to pose a challenge for USCIS and also impacts processing 
times for renewal EAD applications eligible for automatic extensions 
because of the limited amount of USCIS resources that can be allocated 
to those case types. The total number of pending auto-extension EAD 
renewal applications at the end of February 2024 was approximately 
439,000. While some progress has been made in addressing the backlog, 
the progress has not yet achieved sufficient gains to reduce EAD 
renewal processing times and avoid imminent and near-term lapses in 
employment authorization for EAD renewal applicants.
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    \227\ See Sections III.A.2 and B.
    \228\ See Section III.A.1. Table 2. Pending EAD Applications by 
Month.

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[[Page 24652]]

3. Advance Notice and Comment Are Impracticable Due to Imminent Risk of 
Severe Harm to Third Parties
    Processing times \229\ for renewal EADs that are eligible for the 
up-to 180-day automatic extension were 14.5 months as of February 
2024.\230\ It is not operationally feasible, particularly because of 
demands on USCIS to comply with court orders and the 30-day timeline 
for adjudication of initial C08 EAD applications, for USCIS to redirect 
any portion of its resources currently dedicated to adjudicating 
initial EAD applications to handle the adjudication of renewal EAD 
applications. Consequently, the lengthy processing times, which exceed 
the up to 180-day automatic extension available under the current rule, 
will lead to significant gaps in employment authorization and/or 
employment authorization documentation for those who complied with all 
requirements to timely file a renewal EAD application so as not to 
experience such gaps.
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    \229\ Processing times are based on the 80th percentile of those 
approved or denied.
    \230\ See section III.A.3., Additional Designations for 
Temporary Protected Status.
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    Because this result would substantially harm applicants, their 
families and their employers, DHS believes there is urgent need to act 
via this rule to mitigate the risk of a significant lapse in employment 
authorization for a majority of eligible applicants. DHS anticipates 
that, without this action, as soon as May 2024, the 180-day extension 
of employment authorization and/or EADs of approximately 3,000 renewal 
applicants will expire.\231\ After May 2024, the number of renewal 
applicants expected to experience gaps in employment authorization and/
or EAD validity each month will rapidly increase to up to 12,000 (upper 
bound estimate) per month by July 2024, to up to 45,000 (upper bound 
estimate) by April 2025 and up to 64,000 (upper bound estimate) per 
month by November 2025.\232\ Thus, in the absence of this action, DHS 
anticipates that over the time period of May 2024 to March 2026,\233\ 
between 689,000 (lower bound estimate) to 824,000 (upper bound 
estimate) renewal EAD applicants would be at risk of losing their 
employment authorization and/or valid documentation \234\ and, 
consequently, experiencing job loss, while waiting for USCIS to process 
their renewal EAD applications.\235\
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    \231\ See section V.B.2. Table 7. TFR Future Population 
Projections by Month, Rounded to Thousands.
    \232\ See section V.B.2. Table 7. TFR Future Population 
Projections by Month, Rounded to Thousands.
    \233\ See section V.B.2. Table 7. TFR Future Population 
Projections by Month, Rounded to Thousands.
    \234\ See section V.B.2. Table 6A. EADs that could lapse in the 
absence of the TFR, by Class and Percent Variation. As 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.
    \235\ See DHS's analysis outlined in the preamble at section 
V.B., Executive Order 12866 (Regulatory Planning and Review) and 
Executive Order 13563 (Improving Regulation and Regulatory Review), 
regarding the affected population.
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    Of the approximately 3,000 renewal applicants projected to face 
this situation in May 2024, the majority \236\ are asylum applicants 
(C08 category), a particularly vulnerable population. Continuous 
employment authorization during the pendency of an asylum application 
is vital for asylum seekers in the United States, given their 
particularly vulnerable position. Therefore, this group of renewal 
applicants needs urgent action via this rulemaking so these applicants 
can continue to have employment authorization and/or EAD validity and 
continue to make a living to sustain themselves and their families.
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    \236\ See section V.B.2. Table 6A. EADs that could lapse in the 
absence of the TFR, by Class and Percent Variation.
---------------------------------------------------------------------------

    Considering the total population potentially impacted by this rule, 
DHS estimates that, with the implementation of this rule, approximately 
$60.1 billion (for the upper bound population estimate using a 2-
percent discount rate) in labor income for affected renewal applicants 
would be preserved from FY 2024 through FY 2028.\237\ This also 
translates to potential preserved employment taxes of approximately 
$6.3 billion (for the upper bound population estimate using a 2-percent 
discount rate) \238\ that benefit government entities and that would be 
forgone if these individuals were to lose their employment due to the 
potential lapses in employment authorization simply on account of 
processing delays.
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    \237\ Labor earnings includes wages and salaries as well as 
benefits (e.g., paid leave, supplemental pay, insurance).
    \238\ See section V.B.3.c. Table 13, Monetized Expected Value 
Impacts for the TFR ($ millions, 2022).
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    Any delay in action to provide an advance opportunity for notice 
and comment, therefore, would risk severe harm and unnecessary burdens 
on applicants, their families, employers, and communities. DHS 
believes, based on the success of the 2022 TFR, that the immediate 
implementation of this rulemaking will serve the short-term needs of 
applicants, their families and employers as it will significantly 
reduce the potential for additional gaps in employment authorization 
and/or EAD validity, job loss, and financial uncertainty for renewal 
EAD applicants and their families.\239\ At the same time, the rule 
provides DHS with an additional window during which it can consider 
long-term solutions by soliciting public comments and evaluating the 
effects of the ongoing policy changes described throughout this 
preamble and future policy and operational changes that will enable 
USCIS to reach its target processing time of 3 months.
---------------------------------------------------------------------------

    \239\ See section V.B.2. Table 7, TFR Future Population 
Projections by Month, Rounded to Thousands, Column ``With TFR,'' 
showing that the effect of this TFR.
---------------------------------------------------------------------------

    As it relates to employers, DHS notes that as of the beginning of 
the calendar year 2024, employers continue to face a variety of 
challenges, including more job openings than available workers.\240\ To 
ensure continuity of operations, businesses and entities may have made 
decisions (for example, entering into contracts, applying for grants, 
signing leases, or commencing development of product lines) in reliance 
on the expectation that their affected employees would receive timely 
renewals of employment authorization and documentation. Thus, this rule 
prevents adverse impacts on businesses and individuals resulting from 
the uncertainty associated with widescale lapses in employment 
authorization.\241\
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    \240\ Bureau of Labor Statistics data show that, as of December 
2023, there were 0.7 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,'' https://www.bls.gov/charts/job-openings-and-labor-turnover/unemp-per-job-opening.htm (last visited Feb. 6, 2024).
    \241\ See section V.B. Introduction, Table 5. OMB A-4 Accounting 
Statement ($ millions, 2022).
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    DHS's analysis suggests that, if this rule is not implemented 
immediately, approximately 63,000 to 82,000 employers may be negatively 
affected.\242\ DHS further estimates that these businesses and 
organizations employing affected EAD holders would incur approximately 
$17.4 billion in labor turnover costs (for the upper bound population 
estimate using a 2-percent discount rate) for the separation and 
replacement of these employees.\243\

[[Page 24653]]

Thus, this rule would avoid significant costs to employers that 
employers would otherwise experience through no fault of their 
own.\244\
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    \242\ See section V.B.1. Table 3. Summary of Impacts (2022 
dollars, FY 2024-FY 2028).
    \243\ See section V.B.3.c. Table 13. Monetized Expected Value 
Impacts for the TFR ($ millions, 2022). Turnover costs are 
calculated as a percent of annual salary. Amount shown as total 
present value, using a 2-percent discount rate.
    \244\ See section III.C.3. The Current Automatic Extension 
Period of 180 Days Must be Temporarily Increased to 540 Days.
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    With this TFR, DHS seeks to reduce the likelihood that additional 
businesses and entities may be adversely impacted by terminating 
employees whose employment authorization or documentation expires due 
to USCIS processing delays. However, the longer this rule is delayed, 
the greater these potential costs to employers will be. The resulting 
costs and disruptions in business continuity that employers will 
experience are the same harm that 8 CFR 274a.13(d) and this rulemaking 
seek to prevent. As outlined elsewhere in this preamble, in its 2016 
rule proposing the up to 180-day automatic extension of employment 
authorization, DHS explained that the purpose of the provision is to 
mitigate the risk of gaps in employment authorization and required 
documentation and the resulting consequences to eligible renewal 
applicants and their employers.\245\ As a DHS component agency, one of 
USCIS' primary functions is to administer immigration benefits, 
including adjudicating requests for and issuing employment 
authorization and/or EADs.\246\ As explained previously, the INA 
recognizes the Secretary's authority to extend employment authorization 
to noncitizens in the United States \247\ and authorizes the Secretary 
to take necessary regulatory action to carry out this authority 
effectively.\248\
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    \245\ See 80 FR 81899, 81927 (Dec. 31, 2015). Further, 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 81899, 81927 (Dec. 31, 2015). (``DHS believes that 
this time period [of up to 180 days] is reasonable and provides more 
than ample time for USCIS to complete the adjudication process based 
on USCIS' current 3-month average processing time for Applications 
for Employment Authorization.'') After receiving and considering 
public comments, DHS published the final rule. DHS later also 
welcomed comments on the 2022 TFR, as discussed above. Thus, the 
concept of the up to 180-day automatic extension has been ventilated 
for public comment multiple times. This TFR is merely a temporary 
18-month deviation from the 180-day timeframe, warranted in this 
situation for the reasons explained.
    \246\ As of March 1, 2003, the former INS ceased to exist as an 
agency within the U.S. 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 U.S. Citizenship and Immigration Services in the 
U.S. Department of Homeland Security. See HSA of 2002, Public Law 
107-296, sections 451 and 471(a) (Nov. 25, 2002); 68 FR 10922 (Mar. 
6, 2003). Additionally, under the HSA 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.
    \247\ See INA sec. 274A(h)(3)(B), 8 U.S.C. 1324a(h)(3)(B).
    \248\ See INA sec. 103(a)(3), 8 U.S.C. 1103(a)(3).
---------------------------------------------------------------------------

    In short, an advance opportunity for notice and comment and a 60-
day delayed effective date would result in thousands of renewal EAD 
applicants and their employers experiencing gaps in employment 
authorization and/or EAD validity. Such a course of action is therefore 
impracticable as it would impede USCIS functions in effectively 
administering DHS's employment authorization authority and document 
issuance functions and would have a significant negative impact on 
applicants and employers. Under the current circumstances, DHS believes 
that an immediate, temporary increase in the duration of the automatic 
extension period is necessary to achieve this purpose.
4. The TFR Is of Limited Duration and Scope
    Although courts have noted that the time-limited nature of an 
agency's action cannot, by itself, justify forgoing notice and comment 
rulemaking, it is a significant factor in the agency's claim for good 
cause when addressing an emergency.\249\ DHS believes that issuing this 
measure as a temporary rule, which will be for only a period of 540 
days, is a reasonable approach to avoid the harms discussed in this 
rule and thus supports the claim of good cause. Specifically, the 
regulatory reach of the amendments to 8 CFR 274a.13(d) is limited to 
individuals with renewal EAD applications properly filed on or after 
October 27, 2023, and on or before September 30, 2025.\250\ The 
amendments to DHS regulations made by this TFR will only remain in 
place for a total of 1,260 days (i.e., 3.5 years). The temporal 
limitations and narrowly scoped population are suitably tailored to 
avert imminent and near-term harm to a specific class of applicants and 
their employers, given the special circumstances.\251\
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    \249\ See Mid-Tex, 822 F.2d at 1132 (stating that public notice 
and comment gain in importance the more expansive the regulatory 
reach of an agency's rule and that courts, therefore, have 
consistently recognized that a rule's temporally limited scope is 
among the key considerations in evaluating an agency's ``good 
cause'' claim.).
    \250\ See 8 CFR 274a.13(d)(6).
    \251\ Courts have been more inclined to finding good cause for 
issuance of rules without notice and comment if the effect is 
limited in scope and duration. See, e.g., Nat'l Fed'n Emps v. 
Divine, 671 F.2d 607 (D.C. Cir. 1982) (finding that OPM's 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., 653 F.2d 
at 582 (upholding Mine Safety and Health Administration order 
delaying implementation of a rule without notice and comment ``for a 
relatively short time''); San Diego Navy Broadway Complex Coalition 
v. U.S. Coast Guard, 2011 WL 1212888, at *6 (S.D. Cal. 2011) 
(finding good cause for issuance of a TFR because agency limited its 
effect to several months and also explicitly indicated its intent to 
initiate notice-and-comment rulemaking).
---------------------------------------------------------------------------

    The remedy is further limited to applicants who are currently in 
the United States and authorized to work. These applicants are merely 
seeking renewal of their employment authorization and/or EADs, not 
initial determination of their eligibility. These individuals, if 
employed, are already workers in the U.S. labor market as a result of 
the initial employment authorization, and they have relied on the 
current regulations under 8 CFR 274a.13(d) to avoid experiencing a gap 
in employment if they timely and properly file the renewal 
applications. Yet, having complied with the law, they nonetheless face 
a gap in employment authorization and/or documentation because of 
processing delays that directly resulted from the emergent 
circumstances that befell USCIS. This TFR is limited to renewal EAD 
applicants--i.e., those who have already been authorized for 
employment--and the additional automatic extension will have minimal 
adverse impact, if any, on other U.S. workers.\252\ Moreover, in 
providing significant benefits for renewal applicants and their U.S. 
employers, this rule indirectly benefits

[[Page 24654]]

U.S. workers by protecting the financial stability and continuity of 
operations for affected U.S. employers.
---------------------------------------------------------------------------

    \252\ See section V.B.3.d., Module D. Other Impacts. As 
explained, this rule extends current employment authorization for 
individuals who are at risk of losing such authorization solely 
because of USCIS processing delays; it does not grant new work 
authorization to additional persons. See id. According to the most 
recent data (applicable to October 2023), the U.S. labor force 
stands at 167,728,000. The maximum population of about 824,000 
represents 0.50 percent of the national labor force, approximately 
554,000 of which would potentially not lapse as a result of the 
action being taken. See id. Additionally, according to the Bureau of 
Labor Statistics data, and as of December 2023, there were 0.7 
unemployed persons per job opening. See U.S. Department of Labor, 
U.S. Bureau of Labor Statistics, ``Number of unemployed persons per 
job opening, seasonally adjusted,'' https://www.bls.gov/charts/job-openings-and-labor-turnover/unemp-per-job-opening.htm (last visited 
Feb. 6, 2024). Thus, data indicates that there are currently more 
jobs than available employees. As such, DHS believes, based on the 
nature of this rulemaking as well as current economic conditions, 
that the hypothetical possibility of some U.S. workers replacing 
workers who would temporarily lose employment authorization in the 
absence of this rulemaking is not a compelling reason to allow 
widespread losses of employment authorization due to USCIS 
processing delay.
---------------------------------------------------------------------------

    This temporary measure is consistent with the intent of the current 
8 CFR 274a.13(d). In this rule, DHS neither makes additional categories 
eligible for the automatic extension nor alters existing procedures for 
such extension; DHS is simply temporarily increasing the up to 180-day 
timeframe for those already eligible for an automatic extension. As 
shown by the 2022 TFR, such an increase in the automatic extension of 
employment authorization and/or EAD validity is effective, yet narrowly 
scoped, measure for navigating filing spikes and their effects on 
application processing times.
    DHS also significantly limits this rulemaking to address the 
potential lapses that are imminent, further demonstrating that DHS has 
good cause to issue this rulemaking without the notification procedures 
required under the APA. The data projections show that even with the 
540-day automatic extension provided in this TFR, approximately 260,327 
EAD renewal applicants (or approximately 33 percent of the applicants 
who are the subjects of this rule) are potentially at risk of 
experiencing a gap in employment authorization and/or EAD validity once 
their 540-day automatic extension period expires.\253\ The data further 
indicates that extending the automatic extension period to up to 730 
days would be required to prevent many of these lapses in employment 
authorization and/or EAD validity, which could begin in November 2025, 
based on projected processing times.\254\ At this time, DHS has limited 
the automatic extension to the minimum period necessary to avert the 
immediate emergency while USCIS (1) works to improve processing times 
and (2) seeks comment on this TFR and potential additional measures to 
take at a future time.
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    \253\ See section V.B.2. Table 6B. EADs that could lapse under 
the TFR, by Class and Percent Variation.
    \254\ See section V.B.3.d. Table 14, Approximate EAD lapses 
under different extensions.
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    DHS appreciates that this TFR does not resolve all potential 
uncertainty with respect to renewal EAD applications, but notes that it 
has sought comment on potential solutions and that USCIS' ongoing 
streamlining efforts, sub-regulatory measures, and technology 
innovations may produce significant results within this filing period. 
The filing period and concomitant up to 540-day automatic extension 
established by this TFR is therefore appropriately tailored to avert 
imminent harm to renewal EAD applicants, their families and employers 
and provide USCIS with the time needed to assess the effect of any 
recently implemented adjudicative efficiency measures \255\ and 
implement further improvements.
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    \255\ See section III.B. Other Measures Taken to Reduce EAD 
Application Processing Times.
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5. USCIS Has Not Delayed in Issuing This TFR
    Finally, in some cases regarding the good cause standard, courts 
have concluded that an agency's claim of emergency was undermined 
because the agency delayed in implementing its decision.\256\ In such 
contexts, courts have considered, for instance, whether the agency 
``acted diligently'' to address the problem and ``overcome the hurdles 
created by other parties,'' \257\ whether the circumstances requiring 
agency action ``were beyond the agency's control,'' \258\ and whether 
the agency addressed the emergency with an action of limited scope and 
duration.\259\
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    \256\ Many of the leading cases involve circumstances where the 
agency cited a need to meet an imminent statutory or administrative 
deadline. See Envtl. Def. Fund, Inc. v. EPA, 716 F.2d 915 (D.C. Cir. 
1983) (rejecting a claim of good cause to suspend certain reporting 
requirements before they entered into effect, because the agency had 
almost a year earlier deferred such requirements and announced that 
it intended to rescind them); Council of Southern Mountains, Inc., 
653 F.2d at 580-82 (stating that ``only in exceptional 
circumstances'' may ``the imminence of [a legal or administrative] 
deadline'' for taking a particular action ``permit[ ] avoidance of 
APA procedures,'' because otherwise the agency could delay in acting 
and then claim an emergency); NRDC v. Abraham, 355 F.3d 179, 205 (2d 
Cir. 2004) (rejecting the agency's claim of an emergent need to 
review and reconsider certain standards prior to an impending and 
self-imposed administrative deadline); Nat'l Venture Capital Ass'n, 
291 F. Supp. 3d at 16-17 (collecting cases).
    \257\ See, e.g., Council of Southern Mountains, Inc., 653 F.2d 
at 581.
    \258\ See, e.g., Council of Southern Mountains, Inc., 653 F.2d 
at 581; Nat'l Fed'n of Fed. Empl. v. Devine, 671 F.2d 607, 611 (D.C. 
Cir. 1982).
    \259\ See, e.g., Council of Southern Mountains, Inc., 653 F.2d 
at 581; Devine, 671 F.2d at 612.
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    As an initial matter, DHS notes that the harm the agency seeks to 
avoid is vast and would directly befall many blameless third 
parties.\260\ DHS further urges that the agency has not delayed at all. 
As noted above, USCIS has been taking active measures to reduce the 
backlog since the publication of the 2022 TFR,\261\ including staffing 
increases, overtime allowance, policy changes that reduce overall 
adjudicatory volumes and eliminate unnecessary hurdles for applicants, 
and technological innovations that have created operational 
efficiencies. Unfortunately, these measures have not yet been 
sufficient to return to the goal of normal average processing times of 
3 months for renewal EAD applications because of the volume of EAD 
applications that USCIS received in FY 2023--a circumstance that is 
beyond USCIS' control. USCIS has looked for other options to further 
create efficiencies but has yet been unable to create efficiencies that 
match the increase in receipts. Accordingly, having tried many 
alternatives and in the face of a dynamic set of challenges,\262\ DHS 
has determined that this temporary regulatory action is the only 
practicable solution to reduce the likelihood that approximately 
824,000 renewal applicants, their families, and their employers will 
imminently face the dire circumstances and associated costs resulting 
from a lapse in employment authorizations and/or EAD validity periods. 
USCIS developed the technical analysis underlying this regulation on an 
expedited basis, and dedicated scarce agency resources to the swift 
issuance of this rule while addressing other pressing policy matters, 
such as the Fee Rule.
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    \260\ See, e.g., Nat'l Venture Capital Ass'n, 291 F. Supp. 3d at 
16-17.
    \261\ Cf., e.g., Tri-County. Tel. Ass'n, Inc. v. FCC, 999 F.3d 
714, 720 (D.C. Cir. 2021) (``But this is not a case of unjustified 
agency delay. The Commission did act earlier. . . . [and t]he agency 
needed to act again . . . because ``persistent power outages and 
other logistical challenges ha[d] made the continued operation of 
restored networks more expensive than some expected.'').
    \262\ See also section III.A.1, Comparing Fiscal Year (FY) 2023 
Receipts to FY 2022 Receipts, describing the significant increase in 
the numbers of filings in the second half of FY 2023.
---------------------------------------------------------------------------

    In sum, 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 5 U.S.C. 
553(d) would be impracticable due to the need to prevent significant 
harm to renewal EAD applicants, their families, employers, and 
communities.

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

    Executive Orders 12866 (Regulatory Planning and Review), as amended 
by Executive Order 14094 (Modernizing Regulatory Review), and 13563 
(Improving Regulation and Regulatory Review) direct agencies to assess 
the costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic,

[[Page 24655]]

environmental, public health and safety effects, distributive impacts, 
and equity). Executive Order 13563 emphasizes the importance of 
quantifying both costs and benefits, of reducing costs, of harmonizing 
rules, and of promoting flexibility. The Office of Management and 
Budget (OMB) has designated this rule a ``significant regulatory 
action'' as defined under section 3(f)(1) of E.O. 12866, as amended by 
Executive Order 14094. Accordingly, OMB has reviewed this rule.
1. Introduction
    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 timely filed their 
EAD renewal applications, will be increased from up to 180 days to up 
to 540 days for qualified applicants who filed or file an EAD renewal 
application between October 27, 2023 and September 30, 2025.
    As is detailed earlier in the preamble, processing times for 
renewal EAD applications remain at such a level that the current 180-
day automatic extension period for certain renewal EAD applicants' 
employment authorization and/or EADs is currently insufficient. Despite 
USCIS working on reducing the backlog of renewal EAD applications, 
recent events have made it difficult to keep up with the adjudicatory 
workload.\263\ While USCIS is implementing solutions to return 
processing times to target levels, USCIS is taking additional steps to 
mitigate the risk that renewal EAD applicants will experience a lapse 
in employment authorization and/or documentation and related 
consequences while their renewal EAD applications remain pending.\264\
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    \263\ Events such as increased designations of countries for 
temporary protected status, increased number of Afghan and Ukrainian 
national parolees, increased asylum filings due to the end of the 
Title 42 public health Order, and a court decision to require USCIS 
to process all initial EAD applications from asylum applicants with 
30 days. Please see ``Additional Designations for Temporary 
Protected Status,'' ``Increased EAD Validity Periods for Certain 
Applicants,'' ``Impact of the Significant Increase in Referrals to 
USCIS for Credible Fear Assessments,'' and ``Effect of Operational 
Challenges on EAD Application Adjudications'' in the preamble for 
more information.
    \264\ Such measures include increasing the validity periods for 
certain types of applicants, permitting certain asylum applicants to 
electronically file EAD applications, lifting the USCIS hiring 
freeze and increasing the number of employees, prioritizing workload 
management, and addressing fiscal issues in the Fee Rule. Please see 
``Other Measures Taken to Reduce EAD Application Processing Times'' 
in the preamble for more information.
---------------------------------------------------------------------------

    In the absence of this rule, we estimate that between approximately 
689,000 and 824,000 renewal EAD applicants will experience a lapse in 
employment authorization and/or employment authorization documentation 
between May 2024 and March 2026. As of the current data analysis 
(November 1, 2023) even with the extension up to 540 days about 260,000 
renewal EAD applicants may still experience a lapse,\265\ beginning in 
November 2025, under baseline conditions, i.e., assuming status quo 
conditions.\266\ The purpose of this TFR is to reduce the likelihood 
that large numbers of eligible applicants who qualify for automatic 
extensions of their expiring EADs will experience gaps in employment 
authorization and/or EAD validity.\267\ This TFR will therefore provide 
for greater earnings stability for individuals and continuity of 
business operations for their employers.
---------------------------------------------------------------------------

    \265\ Extensions beyond 540 days would likely reduce the number 
of EADs that would still lapse, however this TFR opts for a 540-day 
extension, as discussed in the preamble and later in ``Module D. 
Other Impacts.''
    \266\ The estimate of 260,000 renewal EAD applicants that may 
still experience a lapse is based on assumptions that renewal 
applicants will maintain the same filing behavior, operational 
efficiency and productivity will not change, and staffing levels and 
adjudication hours for EAD renewals will remain unchanged.
    \267\ As stated earlier in the preamble, DHS is applying this 
rule to all renewal EAD application categories eligible for 
automatic extension pursuant to 8 CFR 274a.13(d), even though some 
of these categories currently experience processing times that do 
not raise a risk of the applicant experiencing a lapse in employment 
authorization or documentation. Ninety-five 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.
---------------------------------------------------------------------------

    DHS has determined that the population impacted by this TFR 
consists of the pool of future applicants who, without this rule, would 
likely experience a lapse in employment during the 23-month period as 
described above. Because USCIS cannot forecast the future population 
with precision, we present a baseline population that could range from 
689,000 to 824,000. After applying an adjustment for current 
unemployment conditions in the economy (described in detail in the 
ensuing analysis section), we arrive at an adjusted population that 
could range from 663,000 to 793,000.
    DHS has prepared two types of quantified estimates of the impacts 
that could be generated by this TFR applicable to the adjusted 
population. This rule will prevent the majority of EAD holders from 
incurring a loss of earnings (``stabilized earnings'') because of USCIS 
processing delays for renewal EAD applications, as under this rule 
there will be no disruption to their earnings due to a lapsed EAD. This 
rule will also generate labor turnover cost-savings to businesses that 
employ the EAD holders, as under this rule there would not be a 
disruption to the majority of EAD holders' employment authorization 
and/or document validity. Additionally, to the extent this rule 
prevents affected EAD holders' jobs from going unfilled, there will be 
less impacts to tax transfers from businesses and employees to the 
Federal Government.\268\
---------------------------------------------------------------------------

    \268\ This rule will also prevent a reduction in State and local 
tax revenue but that is not quantified in this analysis. Please see 
Table 5 for more information.
---------------------------------------------------------------------------

    Due to substantial variation in the inputs utilized to estimate the 
impacts, there is a very wide range in which they could fluctuate. 
These impacts are summarized in Table 3, where the monetized figures 
represent the forecast expected value (which is the mean of trial-based 
simulations) discounted at 2 percent.

                       Table 3--Summary of Impacts
                     [2022 Dollars, FY 2024-FY 2028]
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
EAD Holder Earnings Preserved (``Stabilized Earnings''):
     Entities directly affected: Individual EAD holders.
     Population: maximum 663,000 to 793,000 individuals with
     renewal EADs.
     Monetized present value estimate (2 percent): $29.1
     billion.
     Type: Stabilized labor income to affected renewal EAD
     applications; this labor income is a proxy for either prevented
     transfers from EAD holders to others in the workforce or cost
     savings to employers for preserved productivity, depending on if
     employers would have been able to easily find replacement labor for
     affected EAD holders without this rule.
     Summary: Individuals would benefit from being able to
     maintain their employment authorization and, by extension, their
     employment, without disruption; DHS estimated these savings based
     on data from recently lapsed EADs and labor earnings, both of which
     vary within a range.

[[Page 24656]]

 
     Potential preserved employment taxes: $3.1 billion (Present
     Value, 2-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.
Employer Labor Turnover Cost Savings:
     Entities directly affected: businesses that employ the EAD
     holders.
     Population: Possibly 63,000 to 82,000 employers.
     Monetized present value estimate (2 percent): $5.2 billion.
     Type: Cost-savings.
     Summary: There would be cost savings to employers in terms
     of continuity of business operations due to the worker not being
     separated; DHS estimated these savings based on information
     applicable to turnover costs relevant to employee annual earnings,
     both of which vary within a range.
Other Impacts Considered:
     Individuals impacted would likely benefit from cost-savings
     accruing to not having to incur the direct costs and some related
     costs associated with searching for and obtaining a new job once
     their renewal EAD that lapsed is eventually approved.
     To the extent that individuals' earnings will be
     maintained, burdens to their support network would be prevented.
     DHS does not expect adverse disruptions to the labor market
     from this TFR, as the rule is intended to avoid disruptions to
     employment.
     DHS did not include estimates for stabilized earnings for
     any duration of continued unemployment that EAD holders might have
     experienced beyond their EAD lapse duration without this rule.
     Inclusion of such additional time would increase the estimates of
     saved earnings from the rule.
     Avoid opportunity costs to businesses for having to choose
     the next best alternative to employment of the affected renewal EAD
     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).
     Prevent adverse impacts on businesses and individuals
     resulting from the uncertainty associated with widescale lapses in
     employment authorization.
------------------------------------------------------------------------

    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 renewal EAD applicants would have lost if they had experienced 
a gap in employment authorization and/or employment authorization 
documentation 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 renewal EAD 
applicants do not depend on whether their employer can find replacement 
labor. This rule will prevent affected renewal EAD applicants from 
incurring a loss of earnings.
    DHS estimates that stabilized earnings to renewal EAD applicants 
ranges from $2.0 billion to $12.7 billion with a primary estimate of 
$6.2 billion (annualized, 2 percent), depending on the wages and other 
compensation the renewal EAD applicants earn, the number of renewal EAD 
applicants affected, and the duration of the gap in employment 
authorization and/or employment authorization documentation that would 
occur without this rule.\269\ DHS uses estimates of the stabilized 
earnings as a measure of either: (1) prevented transfers of this 
compensation from the affected population to others in the labor 
market; or (2) a proxy for businesses' cost savings from prevented lost 
productivity, depending on whether businesses would have been able to 
find replacement labor for affected renewal EAD applicants without this 
rule.
---------------------------------------------------------------------------

    \269\ Lapse-duration accounted for approximately 47.5 percent of 
this range, wages accounted for 47.0 percent, and the lapse rate 4.9 
percent. For more information, please see section V.B.3.b.i. 
``Earnings impact to EAD holders.''
---------------------------------------------------------------------------

    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 immediately find reasonable labor substitutes for the 
positions the renewal EAD applicants would have lost, businesses would 
have lost little or no productivity. Accordingly, this rule prevents 
$6.2 billion (primary estimate annualized, 2 percent) from being 
transferred from affected renewal EAD applicants to workers currently 
in the labor force (whom are not presently employed full time) or 
induced back into the labor force and this rule would result in $0 cost 
savings to businesses for prevented productivity losses.
    Scenario 2: Conversely, if all businesses would have been unable to 
within the period of analysis find reasonable labor substitutes for the 
position the EAD holder filled, then businesses would have lost 
productivity. Accordingly, $6.2 billion 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 
renewal EAD 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 $6.2 billion would have resulted in employment 
tax losses to the Federal Government (i.e., Medicare and Social 
Security) of $0.7 billion (annualized, 2 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 search for a 
replacement for affected renewal EAD applicants. Accordingly, DHS 
estimates the rule will also result in additional labor turnover cost 
savings to businesses ranging from $0.09 billion to $3.7 billion, with 
a primary estimate of $1.1 billion (annualized, 2 percent) depending on 
the wages and other compensation the renewal EAD applicants earn, the 
number of renewal EAD applicants affected, and the replacement cost to 
employers.
    Table 4 below summarizes these two scenarios and the primary 
estimate of this rule at a 2-percent discount rate. Because DHS does 
not know the overall proportion of businesses that would have been able 
to easily find replacement labor in the absence of this rule, for DHS's 
primary estimate we assume that replacement labor would have been 
immediately found for half of all renewal EAD applicants and not found 
for the other half (i.e., an average of the two extreme scenarios 
described above). However, as noted previously, December 2023 
unemployment and job openings data indicate there are more jobs 
available than people looking for

[[Page 24657]]

jobs.\270\ 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 renewal EAD applicants without this rule.
---------------------------------------------------------------------------

    \270\ Bureau of Labor Statistics data show that, as of December 
2023, there were 0.7 unemployed persons per job opening. See U.S. 
Department of Labor, U.S. Bureau of Labor Statistics, ``Number of 
unemployed persons per job opening, seasonally adjusted,'' https://www.bls.gov/charts/job-openings-and-labor-turnover/unemp-per-job-opening.htm (last visited Feb. 6, 2024).

                          Table 4--Primary Estimate--Monetized Annualized Impacts at 2%
                                                   [Millions]
----------------------------------------------------------------------------------------------------------------
                                                                              Scenario 2: no
                                                            Scenario 1:     replacement labor  Primary estimate:
                                                             immediate          found for      replacement labor
            Category                   Description       replacement labor  affected EAD over  found for half of
                                                           found for all      the period of       affected EAD
                                                            affected EAD         analysis           holders
----------------------------------------------------------------------------------------------------------------
                                                    Transfers
----------------------------------------------------------------------------------------------------------------
Stabilized Earnings............  Prevented compensation           $6,176.5                 $0           $3,088.3
                                  transfers from
                                  renewal EAD
                                  applicants to other
                                  workers.
Employment Taxes...............  Prevented reduction in                  0              651.7              325.9
                                  employment taxes paid
                                  to the Federal
                                  Government.
----------------------------------------------------------------------------------------------------------------
                                                  Cost Savings
----------------------------------------------------------------------------------------------------------------
Labor Turnover.................  Prevented labor                   1,098.3            1,098.3            1,098.3
                                  turnover costs to
                                  businesses.
Productivity...................  Prevented lost                          0            6,176.5            3,088.3
                                  productivity to
                                  businesses
                                  (stabilized earnings
                                  used as a proxy).
                                                        --------------------------------------------------------
    Total Cost Savings.........  ......................            1,098.3            7,274.8            4,186.6
----------------------------------------------------------------------------------------------------------------

    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 renewal 
EAD applications and individuals associated with them will change.\271\ 
A resultant effect of the caseload changes is that as USCIS works 
through this backlog, the number of affected renewal EAD applicants and 
the durations for which renewal EAD applicants may experience a lapse 
in employment without this rule will likely vary from the durations 
modeled. As a result, DHS acknowledges the uncertainty in the above 
monetized impacts.
---------------------------------------------------------------------------

    \271\ Caseload changes can be the result of workforce hiring 
and/or officer re-assignments to other non-EAD renewal application 
workloads, as well as policy changes such as increasing certain EAD 
validity periods and improving processing efficiency through 
increased use of technological advancements.
---------------------------------------------------------------------------

    Second, DHS recognizes that non-work time performed in the absence 
of employment authorization has a positive value, which is not 
accounted for in the above monetized estimates.\272\ 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.\273\ The monetized estimates 
of the compensation this rule preserves are measured relative to a 
baseline in which individuals lose employment authorization and the 
associated income as a result of the problem this rule seeks to 
address. The monetary value of the compensation 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 compensation 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 compensation 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 employment authorization.
---------------------------------------------------------------------------

    \272\ Boardman et al., Cost-Benefit Analysis Concepts and 
Practice (2018), p. 152.
    \273\ For regulatory analysis purposes, DHS generally assumes 
the value of time for unemployed individuals is at least the value 
of the Federal minimum wage.
---------------------------------------------------------------------------

    Pursuant to OMB Circular A-4, DHS has prepared an A-4 Accounting 
Statement for this rule.\274\
---------------------------------------------------------------------------

    \274\ OMB Circular A-4 (November 9, 2023) is available at 
https://www.whitehouse.gov/wp-content/uploads/2023/11/CircularA-4.pdf (last viewed on March 12, 2024).

[[Page 24658]]



                                                          Table 5--OMB A-4 Accounting Statement
                                                                   [$ Millions, 2022]
                                                          [Period of analysis: FY 2024-FY 2028]
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
Category                                               Primary estimate                Minimum         Maximum  Source citation
                                                                                      estimate        estimate  (RIA, preamble, etc.)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Benefits:
    Monetized Benefits........................              2%             N/A             N/A             N/A  RIA.
                                               --------------------------------
    Annualized quantified, but un-monetized,                  N/A                          N/A             N/A  RIA.
     benefits.
                                               ----------------------------------------------------------------
    Unquantified Benefits.....................   Avoiding a lapse in employment authorization and/or    RIA.
                                                EAD validity for renewal EAD applicants may also prevent any
                                                monetary or other support that would have been necessary for
                                                the support network of affected EAD holders to transfer to
                                                affected EAD holders during such a period of unemployment.
                                                 The rule would prevent affected individuals from
                                                incurring direct and indirect costs associated with looking
                                                for work.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Costs:
    Annualized monetized costs................              2%       -$4,186.6          -$87.9      -$16,449.3  RIA.
                                               --------------------------------
    Annualized quantified, but un-monetized,                  N/A                          N/A             N/A  RIA.
     costs.
                                               ----------------------------------------------------------------
    Qualitative (unquantified) costs..........   It will better ensure other cost savings of holding    RIA.
                                                an EAD or job will not be disrupted or subject to significant
                                                uncertainty because of USCIS processing delays, such as valid
                                                identity documents, or health insurance obtained through an
                                                employer.
                                                 Additionally, this rule will prevent adverse impacts
                                                on businesses that would result from required terminations for
                                                affected renewal EAD applicants, or the uncertainty associated
                                                with widescale lapses in employment authorization.
                                                 In cases where, in the absence of this rule,
                                                companies cannot find reasonable substitutes for the labor the
                                                affected renewal EAD applicants have provided, affected
                                                businesses would also save profits from the productivity that
                                                would have been lost. In all cases, companies would avoid
                                                opportunity costs from having to choose the next best
                                                alternative to employment of the affected renewal EAD
                                                applicant.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Transfers:
    Annualized monetized transfers: ``on                    2%               0               0               0  RIA.
     budget''.
                                               ----------------------------------------------------------------
    From whom to whom?........................                                N/A                               N/A.
                                               ----------------------------------------------------------------
    Annualized monetized transfers: stabilized              2%         3,088.3               0        12,749.4  RIA.
     earnings.
                                               ----------------------------------------------------------------
    From whom to whom?........................  This rule will prevent compensation from transferring from      RIA.
                                                affected renewal EAD applicants to other workers.
                                               ----------------------------------------------------------------
    Annualized monetized transfers: taxes.....              2%           325.9               0         1,345.3  RIA.
                                               ----------------------------------------------------------------
    From whom to whom?........................  This rule will prevent a reduction in employment taxes from     RIA.
                                                companies and employees to the Federal Government
                                                (quantified). It would also prevent a reduction in income
                                                taxes from employees to Federal, State, and local governments
                                                (unquantified).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Category                                                                    Effects                             Source citation
                                                                                                                (RIA, preamble, etc.)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Effects on State, local, and/or tribal          This rule will prevent a reduction in State and local tax       RIA.
 governments.                                   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).
                                               ----------------------------------------------------------------
Effects on small businesses...................  This rule does not directly regulate small entities but has     RIA, RFA.
                                                indirect cost-saving to small entities that may employ
                                                affected renewal EAD applicants. Such businesses will avoid
                                                the costs for labor turnover and loss of productivity and
                                                profits had they not been able to immediately fill the labor
                                                performed by the affected renewal EAD applicant.
                                               ----------------------------------------------------------------
Effects on wages..............................  Preserve access to wages and other compensation for renewal     RIA.
                                                EAD applicants.
                                               ----------------------------------------------------------------
Effects on growth.............................  None.                                                           RIA.
--------------------------------------------------------------------------------------------------------------------------------------------------------

2. Background and Population
    As is detailed in the preamble and elsewhere in this rule, 
processing times for renewal EAD applications continue to increase to 
such a level that the current 180-day automatic extension period for 
certain renewal EAD applicants' employment authorization and/or EADs is 
currently insufficient. DHS has carefully analyzed the current backlog 
of cases and has been able to make projections regarding the

[[Page 24659]]

population. At the likely time the TFR would become effective, DHS has 
identified approximately 1 million EADs that would be slated to expire 
during FY 2024 through FY 2027. We culled this ``broad'' population for 
cases accruing to very early filers and certain classes that might be 
adjudicated to arrive at a ``baseline'' population of about 793,000 
that would likely face a lapse. Our analysis considers projected filing 
volumes, filing time behavior, case processing times, and officer 
completion metrics. However, there is likely to be some variation in 
the officer completion metrics that source this figure, and we have 
allowed this input to vary 10- and 15-percent from the baseline to 
account for uncertainty such as in USCIS workforce hiring of 
adjudication officers and officer re-assignments to other non-EAD 
renewal application workloads.\275\ The results are captured in Table 
6, which shows by EAD category. As is shown, the population could range 
from about 689,000 to 824,000, and at the baseline, about 260,000 could 
still lapse (beginning in November 2025 after exceeding the up to 540-
day automatic extension) under the action being taken.\276\
---------------------------------------------------------------------------

    \275\ All other variables remain constant.
    \276\ Certain categories have been excluded from this analysis. 
The A17 (E spouses), A18 (L spouses) and C26 (H spouses) potential 
auto-extensions are limited to the duration of their unexpired I-94 
or the auto extension period, whichever is shorter. However, I-94 
data is controlled by CBP Arrival and Departure Information System 
(ADIS) and is currently not available in a batch/systematic manner 
for USCIS to use to calculate this auto-extension end date and 
estimate these populations. Moreover, a large cohort of E, L, and H 
spouses concurrently file renewal EAD applications with an 
underlying Form I-129 and Form I-539, and therefore the auto-
extension end date is limited by the current I-94 validity date. 
But, in these circumstances, the E, L, and H spouses do not have an 
unexpired I-94 that extends beyond the current expiration date of 
the existing EAD. While a minority of renewal EAD applications filed 
for these spouses are not filed concurrently with the Form I-539, 
and their associated EADs face expiration, USCIS projects that H 
spouses (the largest population in the cohort) would mostly be 
processed on time to avoid any lapses in EAD validity. Furthermore, 
with the new ``incident to status'' employment authorization for E 
and L spouses, the relatively low number of A17 and A18 renewals 
noticeably decreased during the first six months of FY 2024. The A12 
and C19 categories (TPS categories) often have a separate auto-
extension related to each country-specific Federal Register Notice 
(FRN). Additionally, each TPS designation, redesignation, or 
extension only remains in place for up to 18 months at a time. A07, 
A08, C16, C20, C22, C24, and C31 all have relatively low renewal 
filing rates. As such, these categories are excluded from this 
analysis.

                                Table 6A--EADs That Could Lapse in the Absence of the TFR, by Class and Percent Variation
--------------------------------------------------------------------------------------------------------------------------------------------------------
                Variation                       A03             A05             A10             C08             C09             C10            Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
+15%....................................             315          16,706           6,152         494,631         149,619          22,001         689,423
+10%....................................             426          17,525           7,591         529,156         152,125          24,568         731,391
Baseline................................             628          18,701          10,622         581,372         155,699          26,030         793,053
-10%....................................             912          19,584          12,082         602,442         158,365          26,171         819,556
-15%....................................           1,033          20,050          12,510         604,356         159,575          26,181         823,706
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                      Table 6B--EADs That Could Lapse Under the TFR, by Class and Percent Variation
--------------------------------------------------------------------------------------------------------------------------------------------------------
Variation                                            A03             A05             A10             C08             C09             C10           Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
+15%....................................               0           2,040               0              90          65,061              33          67,223
+10%....................................               0           4,111               0          52,030          77,651              33         133,825
Baseline................................               0           7,703               0         155,730          96,861              33         260,327
-10%....................................               0          10,960               0         262,245         110,540              74         383,818
-15%....................................              86          12,100             989         314,911         117,581              74         445,741
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: USCIS analysis of renewal EAD filing data, provided by Office of Performance and Quality (OPQ), USCIS, DHS, Claims 3 database; data provided
  October 18, 2023.
Note: Numbers may not total due to rounding.

    In developing the populations examined for this analysis, it is 
useful to consider three categories. First, there are applicants whose 
automatically extended EADs under the relevant categories benefited 
from the FY 2022 TFR (i.e., they filed on or before October 26, 2023). 
Second, there are applicants who filed after October 26, 2023 and whose 
EADs are still valid, including being within the 180-day auto-extension 
period, but whose auto-extension period will expire in the timespan 
leading up to this TFR taking effect (the ``current'' period captures 
the date of the analysis, which is November 2023, through April 2024). 
Third are the applicants whose EADs would lapse after this TFR becomes 
effective if it were not for the TFR. These population components will 
be considered ``past,'' ``current,'' and ``future,'' respectively.
    In this specific case, we think it is most appropriate to attribute 
the impacts to the ``future'' population when the TFR is in effect. The 
``past'' pool of applicants benefited from the previous TFR and would 
not be affected by this rule. The ``current'' pools of applicants, 
whose EADs may lapse before this rule takes effect, also would not gain 
any benefit from this rule. However, this population is expected to be 
relatively very small in size (if not zero) compared to the size of the 
pool of ``future'' applicants.
    In the absence of this rule, we estimate that between 689,000 and 
824,000 renewal EAD applicants will likely experience a lapse in 
employment authorization and/or employment authorization documentation. 
This ``future'' population would begin to lapse in May 2024 if not for 
this TFR, as applicants would have reverted back to an auto-extension 
period of up to 180 days beginning in October 2023. These lapses would 
occur through March 2026, a point in time when it is estimated that 
USCIS would have caught up on adjudicating these renewal filings. This 
TFR will reduce the likelihood that renewal EAD applicants will 
experience gaps in employment authorization and/or EAD validity with an 
auto-extension period of approximately 18 months. Because this rule 
auto-extends employment authorization for an additional 18 months and 
does not on its own reduce incoming volumes, it is estimated that even 
under this rule some renewal EAD applicants may still experience 
lapses. However, they would not begin to experience lapses until 18 
months after the effective date of this TFR (approximately November 
2025), under the baseline scenario and would occur through March 2027 
under this TFR. Table 7 provides a granular tabulation of the 
populations without the TFR and with the TFR and figure 2 provides a 
monthly expirations of baseline values from Table 7.

[[Page 24660]]



                                        Table 7--TFR Future Population Projections by Month, Rounded to Thousands
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                              No TFR                                         With TFR
                                                        ------------------------------------------------------------------------------------------------
                                                           Low bound:                                       Low bound:                     Upper bound:
                                                           EADs facing                     Upper bound:     EADs facing                     EADs facing
                                                           lapse each    Baseline: EADs    EADs facing      lapse each    Baseline: EADs    lapse each
                                                              month       facing lapse      lapse each         month       facing lapse        month
                                                            (baseline      each month    month (baseline     (baseline      each month      (baseline -
                                                              +15%)                           -15%)            +15%)                           15%)
--------------------------------------------------------------------------------------------------------------------------------------------------------
May-24.................................................           3,000           3,000           3,000                0               0               0
Jun-24.................................................           5,000           6,000           6,000                0               0               0
Jul-24.................................................          10,000          11,000          12,000                0               0               0
Aug-24.................................................          16,000          18,000          18,000                0               0               0
Sept-24................................................          22,000          25,000          26,000                0               0               0
Oct-24.................................................          16,000          23,000          27,000                0               0               0
Nov-24.................................................          19,000          27,000          31,000                0               0               0
Dec-24.................................................          17,000          25,000          29,000                0               0               0
Jan-25.................................................          21,000          28,000          32,000                0               0               0
Feb-25.................................................          27,000          38,000          42,000                0               0               0
Mar-25.................................................          27,000          35,000          36,000                0               0               0
Apr-25.................................................          32,000          43,000          45,000                0               0               0
May-25.................................................          26,000          35,000          36,000                0               0               0
Jun-25.................................................          23,000          30,000          32,000                0               0               0
Jul-25.................................................          36,000          42,000          43,000                0               0               0
Aug-25.................................................          33,000          38,000          39,000                0               0               0
Sept-25................................................          49,000          51,000          52,000                0               0           1,000
Oct-25.................................................          50,000          52,000          52,000                0               0           2,000
Nov-25.................................................          61,000          64,000          64,000                0           1,000           2,000
Dec-25.................................................          52,000          53,000          53,000                0           1,000           4,000
Jan-26.................................................          53,000          54,000          54,000                0           3,000           7,000
Feb-26.................................................          50,000          50,000          50,000            1,000           5,000           7,000
Mar-26.................................................          41,000          42,000          42,000            1,000           5,000          12,000
Apr-26.................................................               0               0               0            2,000           5,000          12,000
May-26.................................................               0               0               0            1,000           3,000          13,000
Jun-26.................................................               0               0               0            3,000           5,000          13,000
Jul-26.................................................               0               0               0            4,000           8,000          25,000
Aug-26.................................................               0               0               0            3,000          10,000          22,000
Sept-26................................................               0               0               0            4,000          19,000          36,000
Oct-26.................................................               0               0               0            5,000          19,000          44,000
Nov-26.................................................               0               0               0            9,000          36,000          54,000
Dec-26.................................................               0               0               0            8,000          30,000          51,000
Jan-27.................................................               0               0               0            8,000          38,000          51,000
Feb-27.................................................               0               0               0           10,000          36,000          49,000
Mar-27.................................................               0               0               0            8,000          36,000          41,000
Apr-27.................................................               0               0               0                0               0               0
May-27.................................................               0               0               0                0               0               0
Jun-27.................................................               0               0               0                0               0               0
Jul-27.................................................               0               0               0                0               0               0
Aug-27.................................................               0               0               0                0               0               0
Sept-27................................................               0               0               0                0               0               0
                                                        ------------------------------------------------------------------------------------------------
    Total..............................................         689,000         793,000         824,000           67,000         260,000         446,000
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: USCIS analysis of renewal EAD filing data, provided by Office of Performance and Quality (OPQ), USCIS, DHS, Claims 3 database; data provided
  October 18, 2023.

Figure 2. Monthly Expirations of Baseline Values from Table 7

[[Page 24661]]

[GRAPHIC] [TIFF OMITTED] TR08AP24.001

    An assumption that is implicit in the populations developed above 
is that every individual with a lapsed EAD would be unauthorized to 
work. In reality, some of the individuals may be authorized to work--or 
become authorized to work--incident to status and merely relying upon 
the EAD to evidence that employment authorization. Others may be 
relying upon the EAD as a government-issued identity document and not 
using it to obtain employment. In either instance, USCIS does not know, 
and is unable to reasonably estimate, how many individuals or what 
percentages of the populations may be separately employment authorized 
or otherwise not relying on the EAD to document their employment 
authorization. It is possible, therefore, that the lower bound estimate 
of population is overstated.
    USCIS stresses that the population over time can vary via changes 
in volumes, processing times, and other factors that are very difficult 
to predict. As such, DHS acknowledges the uncertainties in these 
estimates, but they represent the potential population for the impact 
estimates using the best available information at the time of this 
analysis. To the extent that the population can vary, the impacts 
estimated in the following analysis would vary as well.
3. Impact Analysis
    This section is organized into modules as follows: Module A 
develops earnings levels for the renewal EAD filers, which is a key 
component of the impacts we estimate. Module B focuses on the impact 
simulations for the impacted population's labor earnings impacts and is 
divided into two sections: (1) labor earnings, and (2) labor turnover 
cost. Module C collates the monetized impacts and discounts them over 
the course of the five fiscal years in which the impacts could accrue. 
Module D concludes with consideration of other possible effects.
a. Module A. Earnings of Renewal EAD Applicants
    USCIS expects two broad types of impacts from this 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 core component of both impacts is the earnings of the 
renewal EAD filers, which figure prominently into the monetized 
estimates. Since there is likely to be variation in earnings applicable 
to the population, in this module we cover the methodology to develop a 
range for earnings bounded by a lower and upper level.
    Because many of the individuals renewing EADs would be relatively 
new entrants to the labor force, we would not expect most of them to 
earn very high-tier wages. The Federal minimum wage is currently $7.25 
per hour,\277\ but many States have implemented higher minimum wage 
rates.\278\ However, the Federal Government does not track a nationwide 
population-weighted minimum wage estimate. Individuals in the 
population of interest could be located anywhere within the United 
States and may be subject to a range of minimum wage rates depending on 
the State or city in which they live.
---------------------------------------------------------------------------

    \277\ See DOL, ``Minimum Wage,'' https://www.dol.gov/general/topic/wages/minimumwage (last accessed Nov. 7, 2023).
    \278\ See DOL, ``State Minimum Wage Laws,'' https://www.dol.gov/agencies/whd/minimum-wage/state (last accessed Nov. 7, 2023).
---------------------------------------------------------------------------

    Consistent with other rules, DHS uses the 10th percentile hourly 
wage from the Bureau of Labor Statistics (BLS) National Occupational 
Employment and Wage Estimates for all occupations as a reasonable proxy 
for the effective minimum wage for individuals who are likely to earn 
an entry-level wage. BLS estimates account for changes in wages across 
the United States labor market, which is updated annually and will thus 
reflect any changes to State minimum wage rates. The 10th percentile 
hourly wage estimate for all occupations is currently $13.14, not 
accounting for worker benefits.\279\
---------------------------------------------------------------------------

    \279\ See BLS, ``May 2022 National Occupational Employment and 
Wage Estimates,'' ``United States,'' https://www.bls.gov/oes/2022/may/oes_nat.htm#00-0000 (last visited Nov. 7, 2023). The 10th, 25th, 
75th and 90th percentile wages are available in the downloadable XLS 
file link.
---------------------------------------------------------------------------

    It is likely however, that some individuals impacted earn wages 
above the minimum. Because the EADs

[[Page 24662]]

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 E-Verify case data for FY 2021 and FY 2022 for the EAD 
categories potentially impacted, which yielded 12.26 million 
records.\280\ These data neither distinguish between an E-Verify case 
for an initial EAD, a renewal EAD, or the E-Verify case result, but 
they do provide information that we can draw from regarding employment. 
The E-Verify data do not provide information on job type or occupation, 
but it does provide information about the primary business activity of 
the EAD holder's employer as categorized by the North American 
Classification System (NAICS).
---------------------------------------------------------------------------

    \280\ USCIS, DHS, Immigration Records and Identity Services 
Directorate (IRIS), Verification Division; (Oct. 12, 2023).
---------------------------------------------------------------------------

    Analysis of the E-Verify case data shows that they 
disproportionately accrued to a small subset of activity. Of 103 
represented economic activities, only three exhibited shares of cases 
higher than 10 percent--Professional, Scientific, & Technical Services 
(24.5 percent), Other Information Services (19.1 percent), and 
Administrative and Support Services (11.9 percent). Moreover, the upper 
quartile (75th percentile) is reached with just eleven activities. The 
average individual share across these eleven activities was 6.8 
percent, while for the entire remainder the individual average was 0.3 
percent. Given this concentration, we will center the analysis on the 
activities comprising the upper quartile.
    In Table 8 we present the activities, followed by the level of 
activity applicable to the respective the North American Industry 
Classification System (NAICS) code from the BLS. We rescaled the shares 
of the activities according to the total number of records for the 
upper quartile (9.01 million) and obtained the July 2022 average hourly 
wage for the activities of all employees within the relevant NAICS 
codes from BLS.\281\ We then calculated a weighting factor input, which 
is the product of the wage and the rescaled share.
---------------------------------------------------------------------------

    \281\ BLS, ``Industries at a Glance,'' ``Industries by 
Supersector and NAICS Code,'' https://www.bls.gov/iag/tgs/iag_index_naics.htm (last visited Nov. 7, 2023).
    \282\ There are some technical details applicable to Table 8. 
The title of the activity shown is in a few cases abbreviated for 
space consideration. Otherwise, they reflect exactly what was 
recorded in the E-Verify data. For the activities shown comprising 
the upper quartile, from the first level analysis one activity, Non-
store Retailers, was dropped, and ``replaced'' by Management of 
Companies/Enterprises. The reason this was conducted is that in the 
recent (2022) revision to the NAICS codes, Non-store Retailers was 
eliminated. Many such revisions to activities have been made, and 
the BLS will often describe what revised activity(ies) in the update 
ensconce the former classification. In this case, the removed 
activity consists of three current industry groups, Electronic 
Shopping and Mail-Order Houses (NAICS 4541), Vending Machine 
Operators (NAICS 4542), and Direct Selling Establishments (NAICS 
4543). However, the BLS does not provide wage data applicable to 
these industry groups (see https://www.bls.gov/iag/tgs/iag454.htm). 
In addition, internet Service providers, Web Search Portals, & Data 
Processing appears to apply to a dated 2002 NAICS application, and 
was changed in a 2007 revision to ``Data Processing, Hosting, and 
Related Services'' subsector (see https://www.bls.gov/iag/tgs/iag518.htm).
    \283\ July 2022 average hourly wages from the following: https://www.bls.gov/iag/tgs/iag54.htm; https://www.bls.gov/iag/tgs/iag519.htm; https://www.bls.gov/iag/tgs/iag561.htm; https://www.bls.gov/iag/tgs/iag518.htm; https://www.bls.gov/iag/tgs/iag61.htm; https://www.bls.gov/iag/tgs/iag722.htm; https://www.bls.gov/iag/tgs/iag623.htm; https://www.bls.gov/iag/tgs/iag511.htm; https://www.bls.gov/iag/tgs/iag238.htm; https://www.bls.gov/iag/tgs/iag622.htm; https://www.bls.gov/iag/tgs/iag55.htm. For Educational Services, the average earnings are 
reported annually for five specific occupations, and the hourly wage 
was derived by dividing the annual salary by 2,080 annual work hours 
(see https://www.bls.gov/iag/tgs/iag61.htm) (Obtained 10-15-2023).

                                                Table 8--Derivation of Upper Bound for Hourly Wage \282\
--------------------------------------------------------------------------------------------------------------------------------------------------------
             Economic activity                NAICS code                Level                Share (%)      Cumulative      Wage \283\     Weight factor
--------------------------------------------------------------------------------------------------------------------------------------------------------
Professional, Scientific, & Technical               541000  subsector...................            33.3            33.3           48.34           16.10
 Services.
Other Information Services................          519100  industry....................            26.0            59.4           45.27           11.79
Administrative & Support Services.........          561000  subsector...................            16.2            75.6           25.78            4.18
Internet Service providers, Web Search              518200  industry....................             7.4            83.0           51.33            3.80
 Portals, & Data Processing.
Educational Services......................          611000  subsector...................             3.1            86.1           33.31            1.03
Food Services & Drinking Places...........          722000  subsector...................             2.8            88.8           18.54            0.51
Nursing & residential Care Facilities.....          623000  subsector...................             2.5            91.4           23.31            0.59
Publishing Industries (non-internet)......          511000  subsector...................             2.3            93.7           50.10            1.17
Specialty Trade Contractors...............          238000  subsector...................             2.3            96.0           33.83            0.78
Hospitals.................................          622000  subsector...................             2.1            98.1           38.00            0.80
Management of Companies/Enterprises.......          550000  sector......................             1.9           100.0           44.48            0.84
                                           -------------------------------------------------------------------------------------------------------------
    Sum (rounded).........................  ..............  ............................  ..............  ..............  ..............           41.60
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Summing along the final column yields an hourly wage of $41.60, 
which will apply as the upper earnings bound for this analysis, noting 
that it is 39.6 percent higher than the national average wage weighted 
across all occupations, of $29.76.\284\
---------------------------------------------------------------------------

    \284\ The national average wage is found in the ``May 2022 
National Occupational Employment and Wage Estimates'' in the BLS 
Occupational Employment and Wage Statistics (OEWS) portal, https://www.bls.gov/oes/2022/may/oes_nat.htm (last updated Apr. 25, 2023). 
Relevant calculation: (41.60 / 29.80)-1) x 100.
---------------------------------------------------------------------------

    DHS accounts for worker benefits when estimating the opportunity 
cost of time by calculating a benefits-to-wage multiplier using the 
most recent BLS report detailing average total employee compensation 
for all civilian U.S. workers.\285\ DHS estimates the benefits-to-wage 
multiplier to be 1.45, which incorporates employee wages and salaries 
and the full cost of benefits, such as paid leave, insurance, and 
retirement.\286\ Therefore, using the benefits-to-wage multiplier, DHS 
calculates the total rate of compensation for individuals at the high 
end of the range as $60.32. DHS calculates the total

[[Page 24663]]

rate of compensation for individuals at the lower end of the range as 
$19.05 per hour, where the 10th percentile hourly wage estimate is 
$13.14 per hour and the average benefits are $5.91 per hour.\287\
---------------------------------------------------------------------------

    \285\ See BLS, Economic News Release, ``Employer Costs for 
Employee Compensation--June 2023,'' Table 1. Employer costs for 
employer compensation by ownership, p. 4, https://www.bls.gov/news.release/archives/ecec_09122023.pdf (last visited Nov. 7, 2023).
    \286\ The benefits-to-wage multiplier is calculated as follows: 
(Total Employee Compensation per hour) / (Wages and Salaries per 
hour) = $43.26 / $29.86 = 1.45 (rounded). See BLS, Economic News 
Release, ``Employer Costs for Employee Compensation--June 2023,'' 
Table 1. Employer costs for employer compensation by ownership, p. 
4, https://www.bls.gov/news.release/archives/ecec_09122023.pdf (last 
visited Nov. 7, 2023).
    \287\ The calculation of the benefits-weighted 10th percentile 
hourly wage estimate: $13.14 per hour x 1.45 benefits-to-wage 
multiplier = $19.053 = $19.05 (rounded) per hour.
---------------------------------------------------------------------------

b. Module B. Impacts That Could Accrue to Labor Earnings
i. Earnings Impact to EAD Holders
    There are three core inputs (``components'' or ``variables'') 
requisite to estimate the impacts that could accrue to labor 
compensation; the lapse-duration, earnings, and the impacted 
population. DHS first extracted adjudication records on 77,000 auto-
extended EADs for the relevant categories, which had lapsed and where 
the renewal EAD applications were subsequently approved from January 1, 
2022, to May 15, 2022.\288\ This date range is the benchmark needed for 
this module of the analysis because it captures the most recent data in 
the past in which the auto-extension was 180 days and USCIS was 
experiencing processing delays that resulted in lapses in employment 
authorization. This timeframe serves as the general structure for the 
distribution or shape of lapse durations; later, we make further 
adjustments to account for the larger population of renewal 
applications in need of processing than during this time period.
---------------------------------------------------------------------------

    \288\ Data provided by the USCIS, OPQ, Performance and 
Evaluation reporting (PAER) Division. USCIS Global Claims, and 
Global systems (10-17-23).
---------------------------------------------------------------------------

    Next, USCIS used the Excel random number generator tool to randomly 
sample 3,000 records in order to work with a much smaller and tractable 
data set. For each record, we calculated the lapse-duration in calendar 
days. The data were next grouped into the number of cases that elapsed 
per day-duration and the concomitant share of cases applicable to each 
duration was tabulated.
    Having a tractable sample, it is important to evaluate the 
structure of the data. We utilized the Oracle Crystal Ball[supreg] 
Modelling and Simulation Software (``OCB'') to analyze the data. The 
data analysis batch fit tool in OCB indicates that the Gamma density 
function provides the best fit.\289\ 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. The durations display a wide range (1--
1,049) and cluster around a median of 58, which is lower than the mean 
of 77.9, further informing the positive skew.\290\ The extreme skew of 
the data can be evidenced from Table 9, which displays the percentiles 
applicable to the average lapse durations.
---------------------------------------------------------------------------

    \289\ OCB ranks density fit according to internal routines that 
evaluate the appropriateness of several tests according to features 
of the data. In this case, the Gamma density function fits the data 
best based on all continuous distributions subject to a scoring 
method applicable to the test statistic of the Anderson-Darling (A-
D) test, which in this case is 20.661.
    \290\ The produced tuning parameters are, location = 0.96, scale 
= 78.0, shape = 1.04671.

 Table 9--Percentiles for the Number of Calendar Days Between When Auto-
Extended EADs Expired and Renewal Forms I-765 Were Subsequently Approved
                  From January 1, 2022, to May 15, 2022
                  [``Lapse Duration'' in calendar days]
------------------------------------------------------------------------
                                                                Lapse
                         Percentile                            duration
------------------------------------------------------------------------
10.........................................................           10
20.........................................................           21
30.........................................................           30
40.........................................................           42
50.........................................................           58
60.........................................................           89
70.........................................................          121
80.........................................................          147
90.........................................................          176
100........................................................        1,049
------------------------------------------------------------------------
Source: USCIS analysis of renewal EAD filing data, provided by Office of
  Performance and Quality (OPQ), USCIS, DHS, Claims 3 database; data
  provided October 18, 2023.

    As can be seen, the extreme jump in the lapse value from 176 to 
1,049 in the 90th to 100th percentile is evident that there is long 
tail on the right side of the distribution capturing a small number of 
low probability outlier (numerically high value) durations.
    All three core inputs require some adjustments to make them as 
salient as possible. Foremost, the lapse-durations are in calendar 
days, hence we make an adjustment to account for a full-time 8-hour 
workday and 5-day workweek. However, not all U.S. workers are employed 
full-time, so we also make an adjustment to number of hours worked per 
week. BLS currently reports that average weekly hours across all 
private nonfarm industries is 34.4.\291\ This figure is 86.0 percent of 
a 40-hour workweek.
---------------------------------------------------------------------------

    \291\ BLS, Economic News Release, ``The Employment Situation--
September 2023,'' https://www.bls.gov/news.release/archives/empsit_10062023.htm (Oct. 6, 2023).
---------------------------------------------------------------------------

    As it relates to the core variable, population, the assessments of 
possible impacts rely on the assumption that everyone who was approved 
for an EAD under the relevant categories entered the labor force. DHS 
believes this assumption is justifiable because applicants, with few 
exceptions, would generally not have expended the direct filing (for 
the pertinent EAD categories in which there is a filing fee) and time-
related opportunity costs associated with applying for an EAD if they 
did not expect to recoup an economic benefit. Realistically, however, 
individuals might not be employed for any number of other reasons not 
specifically relevant to this action. The national unemployment rate as 
of October 2023 is 3.9 percent.\292\ There is constant and considerable 
job turnover in the labor market even when the unemployment rate is 
low. Individuals could be unemployed due to this normal turnover or 
from any number of case-specific factors and conditions. As such, we 
believe it is reasonable to scale the population to account for current 
unemployment, which is conducted by integrating the employment rate, as 
unity minus 0.039, to arrive at 0.961.
---------------------------------------------------------------------------

    \292\ BLS, Economic News Release, ``The Employment Situation--
October 2023,'' https://www.bls.gov/charts/employment-situation/civilian-unemployment-rate.htm (Nov. 7, 2023).
---------------------------------------------------------------------------

    DHS scales the baseline population by the unemployment rate and the 
lapse rate--the percentage of the affected renewal population that 
might still experience a lapse in EAD with this rule--to achieve the 
population likely to avoid a lapsed EAD with this rule. The sensitivity 
analysis discussed in Tables 6 and 7 reveals that the percentage of 
EADs that would lapse under the proposed bridge varies. As such, the 
rate that would not lapse also varies. For the baseline population and 
lapse rate we rely on the triangle distribution. This distribution is 
ideal for these inputs because it sets a minimum and maximum value 
around a center point (``likeliest'' value). In our calibration, the 
center point is the baseline value. For the population, the approximate 
minimum is 689,000, maximum is 824,000, and the center point is 
793,000. For the lapse rate, the minimum is 9.8 percent, maximum is 
54.1 percent, and the center point is 32.8 percent.\293\ See Table 6.
---------------------------------------------------------------------------

    \293\ Low bound: 67,223 lapses with the rule/689,423 without; 
Primary: 260,327 lapses with the rule/793,053 without; Upper bound: 
445,741 lapses with the rule/823,706 without.

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

[[Page 24664]]

    DHS is interested in estimating the mean and a range for the 
impacts that is likely to be realized and employs a simulation 
approach. For the earnings we rely on the uniform distribution. This is 
a discrete distribution, which essentially means that any value in the 
range has the same probability as being selected as any other value. 
This structure is chosen because we have no evidence or data to suggest 
that the earnings would tend to cluster at either the low or high end 
of the range.
    Next, DHS adjusts the lapse durations for the expected future under 
the TFR. DHS explained that the Gamma density function provides the 
best fit to the lapse- durations. DHS will operate under the assumption 
that the underlying data structure does not change over the future (the 
period of the TFR). Specifically, the durations will be positively 
skewed and clustered around a median less than the mean, with a long 
thin tail capturing very low-probability values substantially greater 
than the mean. The benefit of the Gamma distribution is that the 
location parameter is generally close to the minimum value, which will 
be consistent (in time), and the scale parameter represents the mean. 
The key shift factor that will change in the future is that the average 
duration will increase drastically. This increase will result from the 
increased processing times for EAD renewal filings that are concomitant 
to the growth in filings and the resulting backlog of cases, as is 
described in the preamble. We therefore have the capability to change 
the mean, and providing we do not alter the shape parameter, the 
general underlying data structure is retained-albeit with a new mean. 
In practice, changing the mean can have some effect on the other two 
parameters, but the distortion is very miniscule. DHS ran dozens of 
experiments with a range of means that could be gleaned as appropriate 
as being informed by the data and in every case the Gamma fit was 
solidly retained, visual examination yielded no discernable differences 
in structure, and the parameters varied by a miniscule amount. Stated 
in more slightly formal terms, the distribution for lapse-durations 
that DHS is working with is generally scalable about its mean, which is 
a crucial necessary condition for estimation.
    To determine the mean to impute we analyzed data provided by the 
USCIS Office of Performance and Quality, applicable to estimated lapse-
durations by the size of the population that could be impacted. We 
began by forecasting monthly filing volumes over the period of analysis 
based on historical filing patterns and expected EAD expirations by 
month. We also estimated average monthly officer completions based on 
FY 2023 totals.
    Because USCIS generally adjudicates applications in the order of 
the date received, for each month in the analysis we calculated the 
pending inventory by adding forecasted receipts and subtracting average 
officer completions. Using this information, we are able to estimate 
the number of pending applications that would expire each month and the 
estimated amount of time until the expired EADs would be adjudicated 
(i.e., the lapse duration). Next, DHS utilized estimates of the number 
of possible lapses and the estimate of the average lapse duration over 
the period in which most of the EADs would lapse. We then divided the 
number of EADs lapsing by duration into the total number that could 
lapse over the entire period to obtain individual weighting factors. 
Multiplying each weight factor by the lapse duration and summing over 
all data points yielded a weighted average lapse duration of 271 days.
    Above, we have described the adjustments made to the population to 
account for unemployment and employment lapses that may still happen, 
to wages to account for benefits, and to the lapse duration to account 
for the work week and hours worked. In practice, it is not necessary to 
make the adjustments to the core inputs directly or even sequentially. 
The reason is that the inputs (core and incumbent adjustment factors) 
interact in the estimation procedure multiplicatively, hence they can 
be abridged into a single equation and nested compactly as a ``one-
step'' routine in the software program.
    The inputs and settings for the estimates are encapsulated in Table 
10. In practice there are two modules (populations) that will comprise 
the earnings impacts. The Department believes the impacts will be 
beneficial to EAD holders as ``preserved'' or ``stabilized'' earnings. 
For EADs that this rule will prevent from lapsing, the duration input 
is the gamma density tuned to the parameters produced by the software 
and truncated at the upper end by a value of 360 (days), since the 
gamma curve is infinite in its upper tail. However, individuals with 
EADs that may still lapse would also incur a benefit of being able to 
work exactly 360 days longer than they otherwise would--there is no 
variation or distribution, as the extra days is the point value of 360 
days. There are any number of ways to derive an expression capturing 
the two population modules that may still incur stabilized earnings, 
i.e., (a) those that would be prevented from lapsing, and (b) those 
that would still lapse. In the technical appendix accompanying this 
rulemaking, we develop the system from its long form into a compact 
nested equation, which is the product of two terms, as is shown in 
Table 10. The combined employment ``intensity'' scalar is developed to 
abridge all non-varying inputs common to both modules as a single input 
for purpose of brevity.

                                Table 10--Model for Estimation of Earnings Impact
----------------------------------------------------------------------------------------------------------------
                           Input                                   Structure                   Settings
----------------------------------------------------------------------------------------------------------------
Baseline Population (P)...................................  Triangle distribution..  Min: 689,000.
                                                                                     Max: 824,000.
                                                                                     Likeliest: 793,000.
----------------------------------------------------------------------------------------------------------------
Lapse rate (L)............................................  Triangle distribution..  Min: 9.8%.
                                                                                     Max: 54.1%.
                                                                                     Likeliest: 32.8%.
----------------------------------------------------------------------------------------------------------------
Hourly wage (W)...........................................  Uniform distribution...  Min: $13.14.
                                                                                     Max: $41.60.
----------------------------------------------------------------------------------------------------------------

[[Page 24665]]

 
Lapse Durations:..........................................  DS: Gamma density;.....  DS: Gamma density.
DS: EADs saved from lapse.................................  DL: Point value........  Location: 0.96.
DL: EADs that lapse.......................................                           Scale: 271.0.
                                                                                     Shape: 1.047.
                                                                                     Max: 360.
                                                                                     DL: 360.
----------------------------------------------------------------------------------------------------------------
Combined scalar...........................................  Point value............  Benefits multiplier (B):
                                                                                      1.45.
                                                                                     Workweek time (T): 5 / 7
                                                                                      days = 0.714.
                                                                                     Average hours (H): 34.4 /
                                                                                      40 hours = 0.86.
                                                                                     Full time day hours (F):
                                                                                      8.0.
                                                                                     Employment rate (E): 1-
                                                                                      0.039 = 0.961.
                                                                                     Scalar (S) = B x T x H x F
                                                                                      x E = 6.85.
----------------------------------------------------------------------------------------------------------------


Nested equation...........................................................                    {(W x S x P) x (DS-(L x (DS-DL))){time}
--------------------------------------------------------------------------------------------------------------------------------------------------------
Results summary...........................................................                 Forecast values (millions, undiscounted) \294\
                                                                           -----------------------------------------------------------------------------
                                                                                        Range level        Preserved earnings   Taxes = (impact x 0.153)
                                                                                                                       impact                    / 1.45
                                                                           -----------------------------------------------------------------------------
                                                                                                low                 $10,230.1                  $1,079.5
                                                                           -----------------------------------------------------------------------------
                                                                                            average                  30,984.8                   3,269.4
                                                                           -----------------------------------------------------------------------------
                                                                                               high                  63,958.4                   6,748.7
                                                                           -----------------------------------------------------------------------------
                                                                             Impact type: stabilized earnings to individuals.
                                                                             Contribution to forecast variance:
                                                                             Lapse duration = 47.5%.
                                                                             Hourly wage = 47.0%.
                                                                             Lapse rate: 4.9%.
                                                                             Population: 0.6%.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: USCIS analysis, 3-5-24.

    OCB repeatedly calculates results using a different set of random 
values from the range of values and probability distributions described 
in Table 10 above to build a model of possible results. We ran 100,000 
randomized seed trials, which is more than sufficient to generate a 95 
percent level of precision in the results.
---------------------------------------------------------------------------

    \294\ The low and high values reflect a 95 percent certainty 
bound, which captures the distribution specific values between the 
2.5th and 97.5th percentiles.

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

[[Page 24666]]

Figure 3. Stabilized Earnings Estimate
[GRAPHIC] [TIFF OMITTED] TR08AP24.002

    Based on the simulation, and as shown in Figure 3, the expected 
value (which is the mean of probabilistic-based forecast values) for 
stabilized earnings is $31.0 billion.\295\ We also generated a 95 
percent certainty range, which reports $10.2 billion to $64.0 billion. 
A sensitivity analysis that scores the inputs in terms of how much 
variation in each contributes to fluctuation in the forecasted values 
reveals that the lapse-durations (that vary) and wage contributed about 
the same, 47.5 and 47.0 percent of the total variation, in order, while 
the lapse rate contributed a small 4.9 percent of the variation (see 
Table 10 for more information). DHS believes that the earnings impact, 
which can be thought of as ``stabilized'' or ``preserved'' earnings to 
renewal EAD applicants, will be beneficial to the EAD holders, as the 
rule would prevent a lapse in their employment authorization and an 
incumbent interruption of their labor compensation.
---------------------------------------------------------------------------

    \295\ The certainty level is based on the entire range of 
forecast values, so the 95 percent certainty range is the range 
between which 95 percent of forecasted values are expected to fall, 
regardless of proximity to the mean. Roughly speaking, the 95 
percent certainty bound would generally capture the distribution-
specific forecast values lying between the 2.5th and 97.5th 
percentiles.
---------------------------------------------------------------------------

    If, without this rule, businesses would not have been able to find 
replacement labor for the position the affected renewal EAD 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.\296\ 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).\297\ 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.
---------------------------------------------------------------------------

    \296\ Robert Frank, ``61% of Americans paid no federal income 
taxes in 2020, Tax Policy Center says,'' CNBC (Aug. 18, 2021), 
https://www.cnbc.com/2021/08/18/61percent-of-americans-paid-no-federal-income-taxes-in-2020-tax-policy-center-says.html (last 
updated Aug. 20, 2021), and for varying State income tax rates, see 
Tonya Moreno, ``Your Guide to State Income Tax Rates,'' The Balance, 
https://www.thebalance.com/state-income-tax-rates-3193320 (last 
updated Jan. 3, 2022).
    \297\ The various employment taxes are discussed in more detail, 
see Internal Revenue Service, ``Understanding Employment Taxes,'' 
https://www.irs.gov/businesses/small-businesses-self-employed/understanding-employment-taxes (last updated Mar. 14, 2022). See 
Internal Revenue Service ``Publication 15,'' ``(Circular E), 
Employer's Tax Guide'' (Dec. 19, 2023), https://www.irs.gov/pub/irs-pdf/p15.pdf for specific information on employment tax rates. 
Relevant calculation: (6.2 percent Social Security+1.45 percent 
Medicare)x2 employee and employer losses=15.3 percent total 
estimated public tax impact.
---------------------------------------------------------------------------

    DHS estimates the tax impacts on the unburdened earnings basis. 
This is done by multiplying the stabilized earnings by the employment 
tax rate of 15.3 percent, and dividing the resulting product by the 
benefits burden multiple of 1.45.\298\ If, without this rule, all 
employers would have been unable to find replacement labor for the 
position the renewal EAD applicant filled, this rule will prevent a 
reduction in employment taxes from employers and employees to the 
Federal Government of $3.3 billion, but could range from $1.1 billion 
to $6.7 billion, in undiscounted terms. The actual value of tax impacts 
will depend on the number of affected EAD holders that businesses would 
have been able to easily find reasonable labor substitutes for in the 
absence of this rule.
---------------------------------------------------------------------------

    \298\ We divide by the 1.45 benefits multiplier to account for 
the fact that employment taxes are calculated based upon wages paid, 
not including fringe benefits.
---------------------------------------------------------------------------

    There are several caveats to our estimates that could cause the 
true impacts to vary higher or lower. In one way, the estimates are 
likely to be understated. DHS accounted for the duration of the EAD 
lapse, but this is not necessarily the total spell of unemployment 
individuals could face. The BLS reports that the median spell of 
unemployment across all economic sectors is 9.2 weeks, which would be 
64.4 days (unadjusted). We did not include this because we do not know 
if

[[Page 24667]]

some portion of individuals may be able to return to their previous 
employers (for example, if the EAD lapse was shorter than the median 
spell of unemployment and if the employer has difficulty finding a 
replacement worker) or, for those who cannot, if they would start the 
search process until they became reauthorized to work. If they did 
not--i.e., they started looking for new work during the lapse, double 
counting would be invoked for some portion of the duration. It may be 
useful to think of the total unemployment spell as being the sum of two 
parts, the EAD lapse and the [job] ``search time.'' We have no data to 
support a determination on when the search process starts, and hence if 
the two parts intersect, and therefore we do not include it. However, 
to the extent that it may be reasonable to assume that many individuals 
would not start looking for work until after they became re-authorized 
to work, incorporating the ``search time'' duration in addition to 
their lapse duration would substantially increase the scope of the 
stabilized earnings impacts.
    Second, in addition to the search time spell of unemployment 
outside of the lapse alone, there are costs to looking for work. There 
are direct costs involved in activities such as resume updating, 
possibly learning new skills, travel to interviews, and so on. There 
are also time-related opportunity costs applicable to the job search. 
DHS does not have salient data or method to allocate the portion of 
individuals that would need to conduct a job search and the portion of 
the search time that could be conducted during the EAD lapse, and thus 
they are not monetized.
ii. 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 
impacts 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.
    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.\299\
---------------------------------------------------------------------------

    \299\ For additional descriptions of the components of labor 
turnover costs, see Ghase Charba, ``Employee retention: The Real 
Cost of Losing an Employee,'' PeopleKeep, (updated February 2, 
2023), https://www.peoplekeep.com/blog/employee-retention-the-real-cost-of-losing-an-employee.
---------------------------------------------------------------------------

    There are numerous studies and reports concerning labor turnover 
costs available from Human Resource entities that are cited across 
correspondent literature. Some focus on specific occupations, 
industries, salary levels, and often measure turnover cost in slightly 
different ways. Labor turnover cost is generally reported as a share of 
annual earnings or an actual cost per employee. Usually these reports 
measure the more direct, or ``hard'' costs associated with turnover and 
not intangible effects such as worker morale or lost productivity. Many 
reports cite a 2012 report published by the Center for American 
Progress (CAP) that surveyed more than 30 studies that considered both 
direct (e.g., separation and replacement) and indirect (e.g., loss of 
institutional knowledge) costs. DHS captures preserved productivity 
savings--proxied by stabilized earnings to applicants--had employers 
not been able to immediately find replacement labor for renewal EAD 
applicants without this rule. DHS requests public comments 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.\300\
---------------------------------------------------------------------------

    \300\ DHS did not receive public comment on this specific 
request in the previous EAD Auto Extension TFR.
---------------------------------------------------------------------------

    The CAP and other reports that we reviewed confirm three central 
aspects of turnover cost: (1) that they vary substantially across 
industries and jobs; (2) that they tend to grow (in absolute and 
percentage terms) according to skill level and earnings; and (3) that 
they are higher for salaried workers compared to hourly wage 
earners.\301\ The report notes that specialized technical jobs and 
highly paid jobs in line with senior or executive levels, which involve 
high levels of education, credentials, and stringent hiring criteria, 
can generate disproportionately high replacement costs that can reach 
more than 100 percent of the salary--compared to jobs with low 
educational and technical requirements.\302\ However, the CAP survey 
found that costs tend to range within a bound of 10 percent to around 
40 percent of the salary. For example, CAP found despite wide variation 
and range, for workers earning on average $75,000 per year or less 
(2012$), turnover costs ranged typically from 10 to 30 percent of the 
salary, clustering at about 21 percent. More recent reports indicate 
that the typical cost is about one-third of the salary.\303\
---------------------------------------------------------------------------

    \301\ See Heather Boushey and Sarah Jane Glynn, ``There Are 
Significant Business Costs to Replacing Employees,'' Center for 
American Progress, (Nov. 16, 2012), https://www.americanprogress.org/issues/economy/reports/2012/11/16/44464/there-are-significant-business-costs-to-replacing-employees/.
    \302\ See Shane Mcfeely and Ben Wigert, ``This Fixable Problem 
Costs U.S. Businesses $1 Trillion,'' Workplace, (Mar. 13, 2019), 
https://www.gallup.com/workplace/247391/fixable-problem-costs-businesses-trillion.aspx. See also Kate Heinz, ``The True Costs of 
Employee Turnover,'' Built In, https://builtin.com/recruiting/cost-of-turnover (last updated June 23, 2023).
    \303\ See ``The Real Cost of Employee Turnover in 2021,'' Terra 
Staffing Group (Nov. 4, 2020), https://www.terrastaffinggroup.com/resources/blog/cost-of-employee-turnover. See also Louie Andre, 
``112 Employee Turnover Statistics: 2021 Causes, Cost & Prevention 
Data,'' Finances Online, https://financesonline.com/employee-turnover-statistics/#cost (last accessed Nov. 7, 2023).
---------------------------------------------------------------------------

    DHS could nest the information provided 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 ensuing forecast procedure. Second, it is 
desirable to obtain a distribution for the data--an average and median 
could be gathered from the referenced reporting, but there would be a 
gap in terms of other metrics needed to calibrate a certain 
distribution.
    DHS examined a 2020 report by the Washington Center for Equitable 
Growth, which updated the earlier CAP study results to provide 
information on about thirty-five studies on turnover costs.\304\ We 
selected data points that

[[Page 24668]]

captured both the annual earnings salary (which the study benchmarked 
to 2019 levels) and turnover costs. We then culled the data applicable 
to salary levels more than the maximum in our earnings bound. We note 
before making any adjustments, multiplying the maximum wage ($41.60) by 
2,080 average annual hours yields a maximum annual earnings figure of 
$86,528. Twenty-seven resulting data points were employed for the 
analysis. While this may be relatively few observations, OCB 
nevertheless was able to fit a lognormal density function to the data, 
and we are confident in relying on the results.\305\ Foremost, the mean 
of 22.4 percent and the median of 16.6 percent of annual salary are 
amenable to the metrics reported in the studies referenced above and 
fall within a substantial range, from 2.1 percent to 68.7 percent. 
Second, on qualitative grounds the lognormal distribution is well-
suited as a setup, as it is often utilized in situations where there is 
wide variation and there is a discrete lower end minimum, further 
restricted to positive values. First, negative values can be ruled out 
in context--there cannot be zero cost to an employee separation--and 
thus a lower tail cutoff to bound to the cost percentage is 
appropriate. Second, we can reasonably conjecture that the costs would 
tend to cluster near the lower tail of the distribution (as outlined in 
the CAP report), which is amenable to the positive skew of the 
distribution, reinforced by the data resultant mean being larger than 
the median.\306\
---------------------------------------------------------------------------

    \304\ See Kate Bahn and Carmen Sanchez Cumming, ``Improving U.S. 
Labor Standards and the Quality of Jobs to Reduce the Costs of 
Employee Turnover to U.S. Companies,'' Washington Center for 
Equitable Growth, (December 2020), https://equitablegrowth.org/wp-content/uploads/2020/12/122120-turnover-costs-ib.pdf. The data are 
found in the methodological appendix, located in the Docket for this 
rulemaking.
    \305\ DHS used the same general data source for the turnover 
costs for the 2022 EAD TFR. In that earlier rule a slightly 
different distribution was applied than the lognormal herein. The 
software periodically updates the mathematics and scoring algorithms 
applicable to density fits and the result was a slight change in the 
appropriate fit. However, both distributions take on a very similar 
shape and any resulting differences in results would be very minor.
    \306\ OCB indicates that the multiple continuous distributions 
are appropriate for the data but ranks the Lognormal distribution 
highest in terms of goodness of fit with an A-D test statistic of t 
= 0.1282 and an associated p-value of 0.971. The three produced 
parameters are as follows: location = -0.03, mean = 0.23, and 
standard deviation = 0.19. The fitted parameters affect the shape 
and position of the distribution.
---------------------------------------------------------------------------

    Additionally, the scatterplots presented in Figures 4A and 4B with 
the fitted least squares line clearly reveal that turnover cost is an 
increasing function of the annual earnings, with a moderately strong 
correlation coefficient of 0.421.\307\ Figure 4A plots the cost as a 
percentage of salary, as this is how it is inputted into the 
estimation, while Figure 4B plots the cost in actual dollars, for 
context (the data points utilized are provided in the accompanying 
technical appendix).
---------------------------------------------------------------------------

    \307\ The slope coefficient for the regression of costs against 
salary is 5.2E-06. By multiplying this figure by 5,000 to obtain 
0.026, it can be interpreted that a $5,000 increase in salary is 
associated with a 2.6 percentage point increase in labor turnover 
costs, on average, within the range of our data. The exact 
probability of committing a type I error (p-value) for the slope 
coefficient is 0.028, such that we can reject the hypothesis that 
salary and turnover costs are not systemically related (or such that 
the correlation in the particular data is due to randomness) with 
more than 95 percent confidence.
[GRAPHIC] [TIFF OMITTED] TR08AP24.003


[[Page 24669]]


[GRAPHIC] [TIFF OMITTED] TR08AP24.004

    To obtain the annual salary we multiply the (non-burdened) wage 
bounds ($13.14 and $41.60) by 2,080 annual full-time hours but make the 
adjustment to account for average hours by scaling by 0.86, as was 
introduced above for stabilized earnings. In addition, we scale the 
baseline population to account for unemployment and lapses that may 
still occur even with this rule; this rule would delay though not 
prevent separations for employees that may still experience a lapse. 
DHS also recognizes that a certain number of individuals may have been 
terminated or chosen to leave irrespective of this rule and, 
accordingly, this rule won't prevent such turnover. DHS does not have 
data on the number of renewal EAD applicants that would have been 
terminated from or left their jobs had they not lost employment 
authorization.\308\ DHS requests public comment on data that could be 
used to make such an adjustment.\309\
---------------------------------------------------------------------------

    \308\ Further, DHS does not have data on the number of EAD 
renewal applicants that have been terminated because their employer 
used an online calculator provided by USCIS to assist in the 
determination of an EAD expiration date. Presumably an employer 
would determine an EAD expiration well in advance of the date for 
business continuation purposes. Regardless, an employer would spend 
time utilizing this optional online calculator with or without this 
rule and is not considered an additional burden for this rule.
    \309\ DHS did not receive public comment on this specific 
request in the previous EAD Auto Extension TFR.
---------------------------------------------------------------------------

    We calibrated the lognormal distribution for the parameters 
produced and calibrated the estimation program according to the below 
input values. The lognormal distribution is infinite in the upper tail 
and we truncated the cost percentage to 68.7 percent, the highest value 
in the underlying data. The core inputs are the baseline population, 
turnover cost percentage, and the wage (unburdened). In practice, it is 
not necessary to adjust them directly or even sequentially. The reason 
is that all the inputs (core and adjustment factors) interact in the 
estimation procedure multiplicatively, hence they can be abridged into 
a single equation and nested compactly as a ``one-step'' routine in the 
software program as the product of two terms. The inputs and settings 
are collated in Table 11, with the nested equation shown as well. The 
correlation between cost and earnings is tuned to 0.421. Imputing the 
correlation essentially means that if a randomly chosen earnings value 
is high, there is a higher probability that a high turnover cost 
percentage will be selected as well and vice versa for lower cost 
percentages. The table below summarizes the entire system--the inputs, 
their settings, and the resulting outputs.

                             Table 11--Model for Estimation of Turnover Cost Impact
----------------------------------------------------------------------------------------------------------------
                            Input                                     Structure                 Settings
----------------------------------------------------------------------------------------------------------------
Baseline Population (P).....................................  Triangle distribution...  Min: 689,000.
                                                                                        Max: 824,000.
                                                                                        Likeliest: 793,000.
----------------------------------------------------------------------------------------------------------------
Lapse rate (L)..............................................  Triangle distribution...  Min: 9.8%.
                                                                                        Max: 54.1%.
                                                                                        Likeliest: 32.8%.
----------------------------------------------------------------------------------------------------------------
Hourly wage (W).............................................  Uniform distribution....  Min: $13.14.
                                                                                        Max: $41.60.
----------------------------------------------------------------------------------------------------------------
Turnover cost % (C).........................................  Lognormal density.......  Location: -0.03.
                                                                                        Mean: 0.23.
                                                                                        S-dev.: 0.19.
                                                                                        Max: 0.687.
----------------------------------------------------------------------------------------------------------------

[[Page 24670]]

 
Employment scalar (S).......................................  Point value.............  Average hour adjustment
                                                                                         (H): 0.86.
                                                                                        Full time annual hours
                                                                                         (A): 2,080.
                                                                                        Employment rate (E):
                                                                                         0.961.
                                                                                        Scalar = H x A x E =
                                                                                         1,719.
----------------------------------------------------------------------------------------------------------------
Correlation.................................................  W, C....................  0.421.
----------------------------------------------------------------------------------------------------------------


Nested equation...........................................................                            {(W x C x P x S) x (1-L)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Results summary...........................................................                    Forecast values (millions, undiscounted)
                                                                           -----------------------------------------------------------------------------
                                                                                                low                   average                      high
                                                                           -----------------------------------------------------------------------------
                                                                                             $441.0                  $5,509.9                 $18,560.7
                                                                           -----------------------------------------------------------------------------
                                                                             Impact type: Cost-savings to employers
                                                                             Contribution to forecast variance:
                                                                             (a) Turnover cost (%) = 65.1%
                                                                             (b) Hourly wage = 34.9%
                                                                             (c) Population and lapse rate = negligible
                                                                            Number of businesses impacted: 62,900-82,400
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: USCIS analysis, 3-5-2024.

    We ran 100,000 randomized seed trials, which is more than 
sufficient to generate 95 percent level of precision in the results. 
The results are displayed in Figure 5.

Figure 5. Estimated Labor Turnover Impacts
[GRAPHIC] [TIFF OMITTED] TR08AP24.005

    Based on the simulation, the expected value is $5.5 billion, and 
the 95 percent precision bound results in a range of forecasts from 
$0.4 billion to $18.6 billion. The sensitivity analysis reveals that 
variation in the turnover cost percentage of the salary contributed 
about 65.1 percent of the wide certainty range while about 34.9 percent 
was driven by the variance in earnings. The other inputs contributed 
negligibly.
    In addition to the projected cost-savings to businesses reported 
above, DHS can make some estimates of the number of businesses that 
could benefit from the cost-savings. From the E-Verify data utilized to 
develop an upper wage bound, we randomly sampled 451 EAD employers, 
which is more than the requisite 384 needed for a 95 percent level of 
confidence and collected the number of E-Verify cases per EAD 
employer.\310\ The analysis reveals that there were on average ten 
cases per EAD employer for FY 2022. If this figure is

[[Page 24671]]

extrapolated to the baseline population, it would indicate that between 
62,900 and 82,400 EAD employers could be impacted.
---------------------------------------------------------------------------

    \310\ DHS determined the sample size using a standard 
statistical formula based on the total EAD employer population of 
149,132 in FY 2022 with a 95 percent confidence level and a 5 
percent confidence interval. This means that there is a 95 percent 
chance that parameters descriptive of the population (e.g., the EAD 
employer population size) are no more than 5 percent different from 
the statistic obtained by the sample.
---------------------------------------------------------------------------

c. Module C. Monetized Impacts for the TFR
    In Table 12 we collate the undiscounted monetized impacts derived 
from the above sections.

                                     Table 12--Summary of Monetized Impacts
                          [FY 2024 through FY 2028, undiscounted, in $ millions, 2022$]
----------------------------------------------------------------------------------------------------------------
                                                    Stabilized    Labor turnover                    Employment
                                                     earnings          cost        Total impacts       taxes
----------------------------------------------------------------------------------------------------------------
Low end.........................................       $10,230.1          $441.0       $10,671.1        $1,079.5
Average.........................................        30,984.8         5,509.9        36,494.7         3,269.4
High end........................................        63,958.4        18,560.7        82,519.1         6,748.7
----------------------------------------------------------------------------------------------------------------

    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. According 
to our analysis, based on the broad population, the shares of impacts 
allocated to the FYs 2024, 2025, 2026, 2027, and 2028, in order, are 
6.0, 18.7, 36.2,31.8, and 7.4 percent.\311\
---------------------------------------------------------------------------

    \311\ These shares are derived by dividing into a total 
population of EADs that could expire (before making any adjustments) 
across the four- year span FY 2024 through FY 2027 of 1,112,425 the 
share that could expire in each of those years, in order, 90,612 
(8.1 percent), 248,299 (22.3 percent), 455,822 (41.0 percent), and 
317,692 (28.6 percent). Because the average lapse duration of 271 
days is 74.2 percent of a 365-day year, the stabilized earnings and 
employment taxes may be spread over more than one fiscal year. To 
account for the cost savings accruing to the next fiscal year (the 
remaining 25.8 percent), we then extrapolate this percentage to the 
population for lapses that would begin in the second half of a 
fiscal year t. The resulting impacts are spread over FY 2024 through 
FY 2028 in the following shares: 6.0 percent (8.1 percent x 74.2 
percent), 18.7 percent (8.1 percent x 25.8 percent + 22.3 percent x 
74.2 percent), 36.2 percent (22.3 percent x 25.8 percent + 41.0 
percent x 74.2 percent), 31.8 percent (41.0 percent x 25.8 percent + 
28.6 percent x 74.2 percent), and 7.4 percent (28.6 percent x 25.8 
percent). Source: DHS, USCIS, OPQ (March 5, 2024).
---------------------------------------------------------------------------

    Table 13 provides the allocated impacts according to the allocation 
derived above, to account for the average, and low and high ends of the 
certainty bound in order. The table is organized into two sections to 
account for undiscounted terms and those at a 2-percent discount rate. 
We parsed out the stabilized earnings and labor turnover impacts 
separately, as they will embody different types of impacts.

                             Table 13--Monetized Expected Value Impacts for the TFR
                                               [$ millions, 2022]
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
                                                 A. Undiscounted
----------------------------------------------------------------------------------------------------------------
                                                1. Low end bound
----------------------------------------------------------------------------------------------------------------
FY                                Stabilized          Labor turnover....  Total impacts.....  Estimated taxes
                                   earnings.                                                   \312\
----------------------------------------------------------------------------------------------------------------
2024............................  $618.3............  $26.7.............  $645.0............  $65.2
2025............................  1,909.3...........  82.3..............  1,991.6...........  201.5
2026............................  3,699.5...........  159.5.............  3,858.9...........  390.4
2027............................  3,249.3...........  140.1.............  3,389.4...........  342.9
2028............................  753.8.............  32.5..............  786.3.............  79.5
                                 -------------------------------------------------------------------------------
    5-year Total................  10,230.1..........  441.0.............  10,671.1..........  1,079.5
----------------------------------------------------------------------------------------------------------------
                                                   2. Average
----------------------------------------------------------------------------------------------------------------
FY                                Stabilized          Labor turnover....  Total impacts.....  Estimated taxes
                                   earnings.
----------------------------------------------------------------------------------------------------------------
2024............................  1,872.7...........  333.0.............  2,205.7...........  197.6
2025............................  5,782.8...........  1,028.3...........  6,811.1...........  610.2
2026............................  11,204.9..........  1,992.5...........  13,197.4..........  1,182.3
2027............................  9,841.4...........  1,750.1...........  11,591.5..........  1,038.4
2028............................  2,283.0...........  406.0.............  2,689.0...........  240.9
                                 -------------------------------------------------------------------------------
    5-year Total................  30,984.8..........  5,509.9...........  36,494.7..........  3,269.4
----------------------------------------------------------------------------------------------------------------
                                                3. High end bound
----------------------------------------------------------------------------------------------------------------
FY                                Stabilized          Labor turnover....  Total impacts.....  Estimated taxes
                                   earnings.
----------------------------------------------------------------------------------------------------------------
2024............................  3,865.6...........  1,121.8...........  4,987.4...........  407.9
2025............................  11,936.8..........  3,464.0...........  15,400.8..........  1,259.5
2026............................  23,129.0..........  6,712.0...........  29,841.0..........  2,440.5
2027............................  20,314.5..........  5,895.3...........  26,209.8..........  2,143.5

[[Page 24672]]

 
2028............................  4,712.5...........  1,367.6...........  6,080.1...........  497.3
                                 -------------------------------------------------------------------------------
    5-year Total................  63,958.4..........  18,560.7..........  82,519.1..........  6,748.7
----------------------------------------------------------------------------------------------------------------
                                                 B. 2% discount
----------------------------------------------------------------------------------------------------------------
                                                4. Low end bound
----------------------------------------------------------------------------------------------------------------
FY                                Stabilized          Labor turnover....  Total impacts.....  Estimated taxes
                                   earnings.
----------------------------------------------------------------------------------------------------------------
2024............................  606.2.............  26.1..............  632.3.............  64.0
2025............................  1,835.1...........  79.1..............  1,914.2...........  193.6
2026............................  3,486.1...........  150.3.............  3,636.4...........  367.8
2027............................  3,001.8...........  129.4.............  3,131.2...........  316.7
2028............................  682.7.............  29.4..............  712.1.............  72.0
                                 -------------------------------------------------------------------------------
    5-year Total................  9,612.0...........  414.4.............  10,026.3..........  1,014.2
                                 -------------------------------------------------------------------------------
        Annualized..............  2,039.3...........  87.9..............  2,127.2...........  215.2
----------------------------------------------------------------------------------------------------------------
                                                   5. Average
----------------------------------------------------------------------------------------------------------------
FY                                Stabilized          Labor turnover....  Total impacts.....  Estimated taxes
                                   earnings.
----------------------------------------------------------------------------------------------------------------
2024............................  1,836.0...........  326.5.............  2,162.5...........  193.7
2025............................  5,558.2...........  988.4.............  6,546.6...........  586.5
2026............................  10,558.6..........  1,877.6...........  12,436.2..........  1,114.1
2027............................  9,092.0...........  1,616.8...........  10,708.7..........  959.4
2028............................  2,067.8...........  367.7.............  2,435.5...........  218.2
                                 -------------------------------------------------------------------------------
    5-year Total................  29,112.6..........  5,177.0...........  34,289.5..........  3,071.9
                                 -------------------------------------------------------------------------------
        Annualized..............  6,176.5...........  1,098.3...........  7,274.8...........  651.7
----------------------------------------------------------------------------------------------------------------
                                                6. High end bound
----------------------------------------------------------------------------------------------------------------
FY                                Stabilized          Labor turnover....  Total impacts.....  Estimated taxes
                                   earnings.
----------------------------------------------------------------------------------------------------------------
2024............................  3,789.8...........  1,099.8...........  4,889.6...........  399.9
2025............................  11,473.3..........  3,329.5...........  14,802.8..........  1,210.6
2026............................  21,795.0..........  6,324.9...........  28,119.8..........  2,299.7
2027............................  18,767.5..........  5,446.3...........  24,213.8..........  1,980.3
2028............................  4,268.3...........  1,238.7...........  5,506.9...........  450.4
                                 -------------------------------------------------------------------------------
    5-year Total................  60,093.8..........  17,439.2..........  77,533.0..........  6,340.9
                                 -------------------------------------------------------------------------------
        Annualized..............  12,749.4..........  3,699.9...........  16,449.3..........  1,345.3
----------------------------------------------------------------------------------------------------------------

    For the discounted figures, the annualized amounts are the average 
annual equivalence basis.
---------------------------------------------------------------------------

    \312\ 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.
---------------------------------------------------------------------------

d. Module D. Other 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.\313\ These 
effects are very difficult to quantify and could be influenced by 
multiple factors, but we will address the possibilities at a conceptual 
level.
---------------------------------------------------------------------------

    \313\ Transfer payments are monetary payments from one group to 
another that do not affect total resources available to society. See 
OMB Regulatory Impact Analysis: A Primer pages 7 and 8 for further 
discussion of transfer payments and distributional effects. https://www.reginfo.gov/public/jsp/Utilities/circular-a-4_regulatory-impact-analysis-a-primer.pdf.
---------------------------------------------------------------------------

    In the cases where, in the absence of this rule, businesses would 
have been able to easily find reasonable labor substitutes for the 
renewal EAD 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 renewal EAD applicants during their earnings lapse. The 
portion of the total estimate of stabilized income that would represent 
this prevented transfer payment will depend on the ability of 
businesses to have found replacement labor in the absence of this rule.

[[Page 24673]]

    In the cases where, in the absence of this rule, businesses would 
not have been able to easily find reasonable labor substitutes for the 
renewal EAD 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 next-best alternative may be for those 
companies. However, if the replacement candidate would have been 
substitutable for the affected renewal EAD applicant to a high degree, 
the labor performed by the new candidate would not have resulted in 
changes to profits or productivity. Accordingly, if the replacement 
labor is highly substitutable, we wouldn't expect 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 employment 
authorization and/or EAD validity after the automatic extension with 
others in the labor force, then once employment eligibility and the EAD 
was eventually reauthorized the EAD holder would need to conduct a new 
search for a new job. They would thus incur direct costs associated 
with seeking new employment. As discussed above, DHS was not able to 
monetize these potential additional costs.
    DHS does not believe this rule will adversely affect the U.S. labor 
market. This rule extends current employment authorization for 
individuals who are at risk of losing it solely because of USCIS 
processing delays; it does not grant new work authorization to 
additional persons. DHS expects that this rule will help to partially 
alleviate the adverse effects that a lapse in employment authorization 
would have on affected current employment-authorized individuals and 
their employers. In FY 2022, 89 percent of EAD renewals for affected 
categories were approved \314\ and all renewals, by definition, had a 
previously approved initial EAD application. According to the most 
recent data (applicable to October 2023), the U.S. labor force stands 
at 167,728,000.\315\ The maximum population of about 824,000 represents 
0.50 percent of the national labor force, approximately 554,000 of 
which would potentially not lapse as a result of the action being 
taken.
---------------------------------------------------------------------------

    \314\ We note that the applicable renewal EAD approval rate from 
FY 2022 for A03, A05, A07, A08, A10, A12, A17, A18, C08, C09, C10, 
C16, C19, C20, C22, C24, C26, and C31 filings was 89 percent. The 
calculation was made from EAD filing data. See Form I-765, 
Application for Employment Authorization, All Receipts, Approvals, 
Denials Grouped by Eligibility Category and Filing Type (FY 2003 
through 2022), https://www.uscis.gov/sites/default/files/document/data/I-765_Application_for_Employment_FY03-22_AnnualReport.pdf (last 
updated Nov. 2022). Due to the increase in backlogs, the renewal EAD 
approval rate was calculated as the number of approvals divided by 
the sum of approvals and denials, rather than the receipts basis. 
Calculation: 511,660 / (551,660 + 63,545) = 0.89. We note that this 
percent may be understated because some C09 denials are denied 
because the applicant's Form I-485 was approved, and they are now a 
lawful permanent resident; setting aside C09 adjudications entirely, 
the renewal EAD approval rate would be 94%. Calculation: 430,879 / 
(430,879 + 26,252) = 0.94. Further, the table in the above link 
notes that ``[s]ome applications approved or denied may have been 
received in previous reporting periods.'' It is possible that an 
approval or denial reported in this table for FY 2022 could have 
been from a renewal EAD application submitted in FY 2021.
    \315\ BLS, ``Employment Situation Summary Table A, Household 
Data, seasonally adjusted,'' ``Civilian labor force,'' https://www.bls.gov/news.release/empsit.a.htm (last visited Nov. 7, 2023).
---------------------------------------------------------------------------

    Without this rule, EAD holders who remain eligible for employment 
authorization would encounter delays in renewal EADs and either be 
unauthorized to work for periods of time or lack documentation 
reflecting their employment authorization. This 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 mitigate the risk that these EAD 
holders will experience gaps in employment authorization and/or EAD 
validity as a result of USCIS processing delays. Accordingly, 
stabilized earnings for these EAD holders may also relieve the support 
network of the applicants for any monetary or other support that would 
have been necessary during such a period of unemployment. This network 
could include public and private entities, and it may comprise family 
and personal friends, legal services providers and advisors, religious 
and charity organizations, State and local public institutions, 
educational providers, and nongovernmental organizations. DHS believes 
these impacts would accrue as cost-savings to the noncitizen EAD 
holders and their families.
    Finally, DHS provides Table 14 to elucidate the share and number of 
EADs that could lapse at the baseline population value (793,000).

                           Table 14--Approximate EAD Lapses Under Different Extensions
----------------------------------------------------------------------------------------------------------------
                                                          Total automatic
                                                           extension days      Approximate        Approximate
        Extension days  (above current 180 days)             (including     share that  could     number that
                                                         current 180 days)   lapse  (percent)     could lapse
----------------------------------------------------------------------------------------------------------------
0......................................................                180                100            793,000
30.....................................................                210                 90            713,000
60.....................................................                240                 80            634,000
90.....................................................                270                 75            595,000
120....................................................                300                 65            515,000
180....................................................                360                 55            436,000
210....................................................                390                 45            376,000
360....................................................                540                 33            260,000
540....................................................                720                  8             63,000
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis, 11-3-23


[[Page 24674]]

    Even with the TFR an estimated 260,000 (baseline) EADs could still 
lapse, though adding 360 days to the current 180-day extension would 
help ensure that these lapses would not occur until November 2025. 
Extensions below 540 days would stand to generate larger numbers of 
potential lapses. Therefore, DHS did not consider lower extensions as 
alternatives.\316\
---------------------------------------------------------------------------

    \316\ DHS emphasizes that these figures are only approximations. 
The reason is that the percentages for lapses (column 2) are the OCB 
ventiles (percentiles at 5 percent increments) for the extensions 
below 360 days. But they do not align exactly with the day 
extensions (column 1). Because of the way the data are produced, we 
chose the percentile closest to the true extension value.
---------------------------------------------------------------------------

    DHS has not quantified the net benefits from an alternative of 
granting extensions greater than 540 days to all or some EAD 
categories. Qualitatively, although Table 14 shows the approximate 
number of EADs that could lapse is further reduced using a 720-day 
bridge (540 temporary extension + the existing 180 days) and thus 
attending benefits would be greater, policy and operational constraints 
exist. As discussed earlier in this preamble, a longer automatic 
extension period would result in a larger number of employers using 720 
or 730 days as their Form I-9 reverification date, even though only 
one-third of affected applicants could need longer than 540 days. 
Additionally, TPS designations, and thus associated-EAD benefits cannot 
be granted for longer than 18 months (approximately 540 days). In 
addition, the Department believes that a longer period could cause 
confusion and potential mistakes in employer verification. While a 
hypothetical carve out might allow for all non-TPS EAD extensions of 
greater duration, DHS has limited information on the potential burdens 
such a carve out could create by deviating from the 540-day extension 
that applicants and their U.S. employers are familiar with from the 
2022 TFR. Operationally, while managing 540- and 730-day extensions 
might be feasible and could mitigate harms projected after October 
2025, the additional complexity to both USCIS and employers of 
administering two different automatic extension durations could delay 
issuing or implementing this TFR to address imminent lapses in 
employment authorization and EAD validity. Accordingly, USCIS is 
proposing an automatic extension totaling 540 days, consistent with the 
FY 2022 TFR and TPS EAD limitations and will evaluate the public 
comments and consider further action as appropriate, while at the same 
time working to reduce the number of EAD renewal applicants that may 
still have their EADs lapse as a result of processing backlogs.
4. Future Regulatory Action
    This rule temporarily amends existing DHS regulations to provide 
that the automatic extension period applicable to expiring 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. DHS is 
soliciting public comment on this TFR as well as potential 
alternatives, such as a permanent increase in the automatic extension 
period from up to 180 days to up to 540 days or a longer extension 
period for certain populations, such as non-TPS EAD renewal applicants.
    Qualitatively, a permanent provision for increasing the automatic 
extension period to up to 540 days would provide long-term 
predictability for applicants and relieve DHS from the pressure of 
having to promptly respond to unexpected changes in circumstances that 
may result in spikes in USCIS processing times and lapses in employment 
authorization and/or documentation for renewal EAD applicants. As 
previously discussed, recent unexpected increases in EAD applications, 
such as initial EAD applications by individuals with pending asylum 
applications (C08) and EAD applications for adjustment of status (C09), 
have contributed to a growing backlog. Should there again be unexpected 
increases in EAD applications for reasons unknown at this time, USCIS 
would have greater flexibility to temporarily reallocate adjudicative 
resources to other product lines because it would have a longer period 
to process renewal EAD applications before applicants would be 
adversely affected by a delay in the processing of their renewal EAD 
application. A permanent rule would also mitigate the number of 
potential lapses in employment authorization and/or documentation for 
renewal EAD applicants that may otherwise occur after the current TFR 
expires if processing times were to spike again in the future.
    A future temporary or permanent rule might also include an 
extension period of greater than 540 days for non-TPS EAD renewal 
applicants, but although such a longer period would reduce the number 
of EADs that could still lapse with a 540-day extension period, among 
other potential effects, such bifurcated automatic extension periods 
may result in some confusion among employers, who have become familiar 
with either a 180-day period or a 540-day period. DHS welcomes public 
comments on any potential benefits and burdens from a permanent 
increase of the automatic extension period, longer extension period for 
non-TPS applicants, or other measures that would create more certainty 
for this population of renewal EAD applicants and their employers.

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 or any other law. See 5 U.S.C. 
604(a). As discussed previously, DHS 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 251 of SBREFA, Public Law 104-121, 110 Stat. 847, 868, et 
seq. OIRA has determined that this TFR meets the criteria in 5 U.S.C. 
804(2). 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 V.A of this preamble, DHS 
has found that there is good cause to make this rule effective 
immediately upon publication.\317\
---------------------------------------------------------------------------

    \317\ See 5 U.S.C. 808(2).
---------------------------------------------------------------------------

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, which includes any 
Federal mandate that may result in a $100 million or more expenditure 
(adjusted annually for inflation) in any one year by State, local, and 
tribal

[[Page 24675]]

governments, in the aggregate, or by the private sector.\318\ The 
inflation adjusted value of $100 million in 1995 is approximately $200 
million in 2023 based on the Consumer Price Index for All Urban 
Consumers (CPI-U).\319\ This rule is exempt from the written statement 
requirement, because DHS did not publish a notice of proposed 
rulemaking for this rule.
---------------------------------------------------------------------------

    \318\ See 2 U.S.C. 1532(a).
    \319\ See BLS, ``Historical Consumer Price Index for All Urban 
Consumers (CPI-U): U.S. city average, all items, by month,'' https://www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202312.pdf (last visited Jan. 17, 2024). Calculation of inflation: 
(1) Calculate the average monthly CPI-U for the reference year 
(1995) and the current year (2023); (2) Subtract reference year CPI-
U from current year CPI-U; (3) Divide the difference of the 
reference year CPI-U and current year CPI-U by the reference year 
CPI-U; (4) Multiply by 100 = [(Average monthly CPI-U for 2023--
Average monthly CPI-U for 1995) / (Average monthly CPI-U for 1995)] 
x 100 = [(304.702-152.383) / 152.383] = (152.319/152.383) = 
0.99958001 x 100 = 99.96 percent = 100 percent (rounded). 
Calculation of inflation-adjusted value: $100 million in 1995 
dollars x 2.00 = $200 million in 2023 dollars.
---------------------------------------------------------------------------

    This TFR does not contain a Federal mandate as the term is defined 
under UMRA.\320\ The requirements of title II of UMRA, therefore, do 
not apply, and DHS has not prepared a statement under UMRA.
---------------------------------------------------------------------------

    \320\ The term ``Federal mandate'' means a Federal 
intergovernmental mandate or a Federal private sector mandate. See 2 
U.S.C. 1502(1), 658(6).
---------------------------------------------------------------------------

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 and its components analyze proposed actions to determine 
whether the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et 
seq., applies to them and if so, what degree of analysis and 
documentation is required. DHS Directive 023-01 Rev. 01 and Instruction 
Manual 023-01-001-01 Rev. 01 (Instruction Manual) \321\ establish the 
policies and procedures that DHS and its components use to comply with 
NEPA and the Council on Environmental Quality (CEQ) regulations for 
implementing NEPA.\322\ The CEQ regulations allow Federal agencies to 
establish, in their NEPA implementing procedures, categories of actions 
(``categorical exclusions'') that experience has shown do not, 
individually or cumulatively, have a significant effect on the human 
environment and, therefore, do not require preparation of an 
environmental assessment or environmental impact statement.\323\ The 
Instruction Manual, Appendix A lists the DHS categorical 
exclusions.\324\
---------------------------------------------------------------------------

    \321\ The Instruction Manual contains the Department's 
procedures for implementing NEPA and was issued November 6, 2014. 
Available at https://www.dhs.gov/publication/directive-023-01-rev-01-and-instruction-manual-023-01-001-01-rev-01-and-catex.
    \322\ 40 CFR parts 1500 through 1508.
    \323\ 40 CFR 1507.3(e)(2)(ii) and 1501.4.
    \324\ See Appendix A, Table 1.
---------------------------------------------------------------------------

    Under DHS NEPA implementing procedures, for an action to be 
categorically excluded, it must satisfy each of the following three 
conditions: (1) the entire action clearly fits within one or more of 
the categorical exclusions; (2) the action is not a piece of a larger 
action; and (3) no extraordinary circumstances exist that create the 
potential for a significant environmental effect.\325\
---------------------------------------------------------------------------

    \325\ See Instruction Manual section V.B(2)(a) through (c).
---------------------------------------------------------------------------

    This rule amends DHS's existing regulations under 8 CFR 274a.13(d) 
to temporarily increase the period of time that the employment 
authorization of certain eligible renewal EAD applicants are 
automatically extended while their renewal applications remain pending 
with USCIS. More specifically, this rule provides that the automatic 
extension period applicable to expiring EADs for certain applicants who 
have filed renewal EAD applications will be increased from up to 180 
days to up to 540 days.
    DHS finds no significant impact on the environment, or any change 
in environmental effect that will result from the rule amendments being 
promulgated in this temporary final rule. Accordingly, DHS finds that 
the promulgation of this temporary final rule's amendments clearly fits 
within categorical exclusion A3 established in the Department's NEPA 
implementing procedures as an administrative change with no change in 
environmental effect.
    This TFR is limited to increasing the automatic extension period 
applicable to expiring EADs for certain renewal applicants who have 
filed a renewal EAD application and is not part of a larger DHS 
rulemaking action. In accordance with DHS's NEPA implementing 
procedures, DHS has reviewed the rule and finds no extraordinary 
circumstances associated with this TFR exists that may give rise to 
significant environmental effects requiring further analysis and 
documentation. Therefore, this action is categorically excluded and no 
further NEPA analysis or documentation is required.

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,\326\ enacted as part of the Omnibus Consolidated and Emergency 
Supplemental Appropriations Act, 1999.\327\ 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.
---------------------------------------------------------------------------

    \326\ See 5 U.S.C. 601 note.
    \327\ Pub. L. 105-277, 112 Stat. 2681 (1998).
---------------------------------------------------------------------------

    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. DHS believes 
that this TFR will create positive effects on the family by mitigating 
uncertainty about continued employment authorization for renewal 
applicants.

J. Paperwork Reduction Act

    This rule does not propose new, or revisions to existing, 
``collection[s] of

[[Page 24676]]

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 EAD application or 
to collect additional information beyond that already collected on the 
EAD application.

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

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

    Authority: 8 U.S.C. 1101, 1103, 1105a, 1324a; 48 U.S.C. 1806; 
Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 114-74, 129 
Stat. 599; Title VII of Pub. L. 110-229, 122 Stat. 754; Pub. L. 115-
218, 132 Stat. 1547; 8 CFR part 2.

0
2. Effective April 8, 2024, through October 15, 2025, amend Sec.  
274a.13 by revising the heading of paragraph (d)(5) to read as follows:


Sec.  274a.13  Application for employment authorization.

* * * * *
    (d) * * *
    (5) Temporary increase in the automatic extension period for 
renewal applications properly filed on or before October 26, 2023. * * 
*

0
3. Effective April 8, 2024, through September 20, 2027, amend Sec.  
274a.13 by adding paragraph (d)(6) to read as follows:
    The revisions and additions read as follows:


Sec.  274a.13  Application for employment authorization.

* * * * *
    (d) * * *
    (6) Temporary increase in the automatic extension period for 
renewal applications properly filed on or after October 27, 2023. The 
authorized extension period stated in paragraph (d)(1) of this section, 
8 CFR 274a.2(b)(1)(vii), and referred to in paragraph (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) of this section who properly 
filed their renewal application on or after October 27, 2023, and on or 
before September 30, 2025. 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 September 30, 2025. 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)(6) have been met, notwithstanding 
any notations on such notice indicating an automatic extension of up to 
180 days. Nothing in this paragraph (d)(6) 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. 2024-07345 Filed 4-4-24; 8:45 am]
BILLING CODE 9111-97-P