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LEGAL STATUS


RULE




TEMPORARY INCREASE OF THE AUTOMATIC EXTENSION PERIOD OF EMPLOYMENT AUTHORIZATION
AND DOCUMENTATION FOR CERTAIN RENEWAL APPLICANTS

A Rule by the Homeland Security Department on 05/04/2022

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DOCUMENT DETAILS

Information about this document as published in the Federal Register.

Printed version: PDF Publication Date: 05/04/2022 Agency: Department of Homeland
Security Dates: Effective date: This temporary final rule is effective May 4,
2022, through October 15, 2025. Effective Date: 05/04/2022 Document Type: Rule
Document Citation: 87 FR 26614 Page: 26614-26652 (39 pages) CFR: 8 CFR 274
Agency/Docket Numbers: CIS No. 2714-22 DHS Docket No. USCIS-2022-0002 RIN:
1615-AC78 Document Number: 2022-09539

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 * ENHANCED CONTENT - TABLE OF CONTENTS
   
   This table of contents is a navigational tool, processed from the headings
   within the legal text of Federal Register documents. This repetition of
   headings to form internal navigation links has no substantive legal effect.
   
    * AGENCY:
    * ACTION:
    * SUMMARY:
    * DATES:
    * ADDRESSES:
    * FOR FURTHER INFORMATION CONTACT:
    * SUPPLEMENTARY INFORMATION:
    * I. Public Participation
    * II. Background
    * A. Legal Authority
    * B. Legal Framework for Employment Authorization
    * 1. Types of Employment Authorization: 8 CFR 274a.12(a), (b), and (c)
    * 2. The Application Process for Obtaining Employment Authorization and
      EADs: 8 CFR 274a.13(a)
    * 3. Automatic Extensions of EADs for Renewal Applicants: 8 CFR 274a.13(d)
    * a. Renewing Employment Authorization and/or EADs
    * Module A. b. Minimizing the Risk of Gaps in Employment Authorization
      and/or EAD Validity Through Automatic Extensions
    * III. Purpose of This Temporary Final Rule
    * A. Overview of Issues Negatively Impacting Form I-765 Processing Times
    * B. Effect of Operational Challenges on Form I-765 Adjudications
    * 1. Precarious Fiscal Status in 2020 and Part of 2021
    * 2. Public Health Emergency
    * 3. Other Impacts to Operations
    * C. Sudden Increase in Form I-765 Filings in 2021
    * 1. Comparing FY 2021 Receipts to Prior Years' Receipts
    * 2. Workforce Planning Shortfall
    * D. Emergency Temporary Solution To Address Current Backlog
    * 1. Current Measures To Reduce the Backlog and Reduce Processing Times
    * 2. Existing Automatic Extension Period of Up to 180 Days Temporarily Not
      Sufficient
    * 3. Temporary 360-Day Increase Beyond 180 Days Needed for 540-Day Period
    * IV. Temporary Regulatory Change: 8 CFR 274a.13(d)(5)
    * V. Regulatory Requirements
    * A. Administrative Procedure Act
    * B. Executive Order 12866 (Regulatory Planning and Review) and Executive
      Order 13563 (Improving Regulation and Regulatory Review)
    * 1. Introduction
    * 2. Background and Population
    * 3. Impact Analysis
    * Module A. Earnings of EAD Renewal Applicants
    * Module B. Impacts That Could Accrue to Labor Earnings
    * 1. Duration Analysis for Previously Lapsed EAD Renewals
    * 2. Simulation and Impact Estimation
    * Module C. Labor Turnover Cost Impacts
    * Module D. Monetized Impacts for the TFR
    * Module E. Economic and Business Impacts
    * Module F. Other Impacts
    * C. Regulatory Flexibility Act
    * D. Small Business Regulatory Enforcement Fairness Act of 1996
      (Congressional Review Act)
    * E. Unfunded Mandates Reform Act of 1995
    * F. Executive Order 13132 (Federalism)
    * G. Executive Order 12988 (Civil Justice Reform)
    * H. National Environmental Policy Act
    * I. Family Assessment
    * J. Paperwork Reduction Act
    * List of Subjects in 8 CFR Part 274a
    * PART 274a CONTROL OF EMPLOYMENT OF ALIENS
    * Footnotes
   
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PUBLISHED DOCUMENT

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Start Preamble Start Printed Page 26614


AGENCY:

U.S. Citizenship and Immigration Services, DHS.


ACTION:

Temporary final rule with request for comments.


SUMMARY:

This rule temporarily amends existing Department of Homeland Security (DHS)
regulations to provide that the automatic extension period applicable to
expiring Employment Authorization Documents (Forms I-766 or EADs) for certain
renewal applicants who have filed Form I-765, Application for Employment
Authorization, will be increased from up to 180 days to up to 540 days from the
expiration date stated on their EADs. This increase will be available to
eligible renewal applicants with pending Forms I-765 as of May 4, 2022,
including those applicants whose employment authorization may have lapsed
following the initial 180-day extension period, and any eligible applicant who
files a renewal Form I-765 during the 540-day period beginning on or after May
4, 2022, and ending October 26, 2023. In light of current processing times for
Forms I-765, DHS is taking these steps to help prevent renewal applicants from
experiencing a lapse in employment authorization and/or documentation while
their applications remain pending and solutions are implemented to return
processing times to normal levels.


DATES:



Effective date: This temporary final rule is effective May 4, 2022, through
October 15, 2025.

Submission of public comments: Written comments must be submitted on or before
July 5, 2022. The electronic Federal Docket Management System will accept
comments prior to midnight eastern time at the end of that day.


ADDRESSES:

You may submit comments on the entirety of this temporary final rule package,
identified by DHS Docket No. USCIS-2022-0002, through the Federal eRulemaking
Portal: https://www.regulations.gov. Follow the website instructions for
submitting comments.

Comments submitted in a manner other than the one listed above, including emails
or letters sent to USCIS or DHS officials, will not be considered comments on
the temporary final rule and may not receive a response. Please note that USCIS
cannot accept any comments that are hand-delivered or couriered. In addition,
USCIS cannot accept comments contained on any form of digital media storage
devices, such as CDs/DVDs and USB drives. USCIS is not accepting mailed comments
at this time. If you cannot submit your comment by using
https://www.regulations.gov, please contact Samantha Deshommes, Chief,
Regulatory Coordination Division, Office of Policy and Strategy, U.S.
Citizenship and Immigration Services, Department of Homeland Security, by
telephone at 240-721-3000 (not a toll-free call) for alternate instructions.

Start Further Info


FOR FURTHER INFORMATION CONTACT:

Melissa Lin, Branch Chief, Policy Development and Coordination Division, Office
of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of
Homeland Security, 5900 Capital Gateway Drive, Camp Springs, MD 20746; telephone
240-721-3000 (not a toll-free call).

Individuals with hearing or speech impairments may access the telephone numbers
above via TTY by calling the toll-free Federal Information Relay Service at
1-877-889-5627 (TTY/TDD).

End Further Info End Preamble Start Supplemental Information


SUPPLEMENTARY INFORMATION:




I. PUBLIC PARTICIPATION

DHS invites you to participate in this rulemaking by submitting written data,
views, or arguments on all aspects of this temporary final rule. Comments
providing the most assistance to DHS will reference a specific provision of the
temporary final rule, explain the reason for any recommended change, and include
data, information, or authority that supports the recommended change. Comments
submitted in a manner other than explicitly provided above, including emails or
letters sent to USCIS or DHS officials, will not be considered comments on the
temporary final rule and may not receive a response.

Instructions: All submissions should include the agency name and DHS Docket No.
USCIS-2022-0002 for this rulemaking. Providing comments is entirely voluntary.
DHS will post all submissions, without change, to the Federal eRulemaking Portal
at https://www.regulations.gov and will include any personal information you
provide. Because the information you submit will be publicly available, you
should consider limiting the amount of personal information in your submission.
DHS may withhold information provided in comments from public viewing if it
determines that such information is offensive or may affect the privacy of an
individual. For additional information, please read the Privacy Act notice
available through the link in the footer of https://www.regulations.gov.

Docket: For access to the docket and to read comments received, go to
https://www.regulations.gov, referencing DHS Docket No. USCIS-2022-0002. You may
also sign up for email alerts on the online docket to be notified when comments
are posted or subsequent rulemaking is published.


II. BACKGROUND

Operational challenges, exacerbated by the emergency measures USCIS employed to
maintain its operations through the height of the COVID-19 pandemic in 2020,
which greatly affected operations and staffing, combined with a sudden increase
in Form I-765 filings, have resulted in processing times for Form I-765
increasing to such a level that the 180-day automatic extension period for Form
I-765 renewal applicants' employment authorization and/or EADs is temporarily
insufficient. For some applicants, the extension has already expired, while for
many others, it is in imminent danger of expiring. As a result, renewal
applicants are losing their jobs and employers suddenly are faced with finding
replacement workers during a time when the U.S. economy is experiencing more job
openings than available workers.[1] DHS has determined that it is imperative to
immediately increase the automatic extension period of employment authorization
and/or EADs for eligible Form I-765 renewal applicants for a temporary period.
This temporary increase to the automatic extension period will avoid the
immediate harm that otherwise would affect tens of thousands of EAD renewal
applicants and their U.S. employers in those cases where USCIS is unable to
process applicants' EAD renewal applications before the end of the current
180-day automatic extension period. USCIS is already taking steps to more
permanently address its backlogs for EAD applications and other form types, and
this temporary increase will provide a temporary extension while Start Printed
Page 26615 USCIS works to return to pre-pandemic processing times.


A. LEGAL AUTHORITY

The Secretary of Homeland Security's (Secretary) authority for the regulatory
amendments made in this TFR are found in: section 274A(h)(3)(B) of the
Immigration and Nationality Act (INA), 8 U.S.C. 1324a(h)(3)(B), which recognizes
the Secretary's authority to extend employment authorization to noncitizens in
the United States; and section 101(b)(1)(F) of the Homeland Security Act, 6
U.S.C. 111(b)(1)(F), which establishes as a primary mission of DHS the duty to
“ensure that the overall economic security of the United States is not
diminished by efforts, activities, and programs aimed at securing the homeland.”
In addition, section 103(a)(3) of the INA, 8 U.S.C. 1103(a)(3), authorizes the
Secretary to establish such regulations as the Secretary deems necessary for
carrying out the Secretary's authority under the INA, and section 214 of the
INA, 8 U.S.C. 1184, including section 214(a)(1), 8 U.S.C. 1184(a)(1), authorizes
the Secretary to prescribe, by regulation, the terms and conditions of the
admission of nonimmigrants.


B. LEGAL FRAMEWORK FOR EMPLOYMENT AUTHORIZATION

1. TYPES OF EMPLOYMENT AUTHORIZATION: 8 CFR 274A.12(A), (B), AND (C)

Whether or not a noncitizen is authorized to work in the United States depends
on the noncitizen's immigration status or other conditions that may permit
employment authorization (for example, having a pending application for asylum
or a grant of deferred action). DHS regulations outline three classes of
noncitizens who may be eligible for employment in the United States, as
follows: [2]

• Noncitizens in the first class, described at 8 CFR 274a.12(a), are authorized
to work “incident to status” for any employer, as well as to engage in
self-employment, as a condition of their immigration status or circumstances.
Although authorized to work as a condition of their status or circumstances,
certain classes of noncitizens must apply to USCIS in order to receive a Form
I-766 EAD as evidence of that employment authorization; [3]

• Noncitizens in the second class, described at 8 CFR 274a.12(b), also are
authorized to work “incident to status” as a condition of their immigration
status or circumstances, but generally the authorization is valid only for a
“specific employer;” [4] and

• Noncitizens in the third class, described at 8 CFR 247a.12(c), are required to
apply for employment authorization and may work only if USCIS approves their
application. Therefore, they are authorized to work for any employer, as well as
to engage in self-employment, upon approval, in the discretion of USCIS, of Form
I-765, Application for Employment Authorization, so long as their EAD remains
valid.[5]

2. THE APPLICATION PROCESS FOR OBTAINING EMPLOYMENT AUTHORIZATION AND EADS: 8
CFR 274A.13(A)

For certain eligibility categories listed in 8 CFR 274a.12(a) (the first class)
and all eligibility categories listed in 8 CFR 274a.12(c) (the third class), as
well as additional categories specified in form instructions, an Application for
Employment Authorization (Form I-765) must be properly filed with USCIS (with
fee or fee waiver as applicable) to receive employment authorization and/or the
Form I-766 EAD.[6] If granted, such employment authorization and EADs allow
noncitizens to work for any U.S. employer or engage in self-employment, as
applicable. Certain noncitizens may file Form I-765 concurrently with a related
benefit request if permitted by the form instructions or as announced by
USCIS.[7] In some instances, the underlying benefit request, if granted, would
form the basis for eligibility for employment authorization.

For eligibility categories listed in 8 CFR 274a.12(a) and (c), USCIS has the
discretion to establish a specific validity period for the EAD.[8]

3. AUTOMATIC EXTENSIONS OF EADS FOR RENEWAL APPLICANTS: 8 CFR 274A.13(D)

A. RENEWING EMPLOYMENT AUTHORIZATION AND/OR EADS

EADs are not valid indefinitely, but instead expire after a specified period of
time.[9] Noncitizens within eligibility categories listed in 8 CFR 274a.12(c)
must obtain a renewal of employment authorization and their EAD before the
expiration date stated on the current EAD, or the noncitizen will lose the
eligibility to work in the United States unless the noncitizen has obtained an
immigration status or belongs to a class of individuals with employment
authorization incident to that status (or class) since obtaining a current EAD.
The same holds true for some classes of noncitizens authorized to work incident
to status whose EADs' expiration dates coincide with the termination or
expiration of their underlying immigration status. Other noncitizens authorized
to work incident to status, such as asylees, refugees, and Temporary Protected
Status (TPS) beneficiaries, may have immigration status that confers employment
authorization that continues past the expiration date stated on their EADs.
Nevertheless, such individuals may wish to renew their EAD in order to have
valid evidence of their continuous employment authorization for various
purposes, such as presenting evidence of employment authorization and identity
to their employers for completion of the Employment Eligibility Verification
(Form I-9), or to obtain benefits such as a driver's license from a State motor
vehicle agency.[10] Failure to renew their EADs prior to the expiration date may
result in job loss if such individuals do not have or cannot present alternate
evidence of employment authorization, as employers who continue to employ
individuals without employment Start Printed Page 26616 authorization may be
subject to civil money penalties.[11]

Those seeking to renew previously granted employment authorization and/or EADs
must file the renewal request on Form I-765 with USCIS in accordance with the
form instructions.[12]

MODULE A. B. MINIMIZING THE RISK OF GAPS IN EMPLOYMENT AUTHORIZATION AND/OR EAD
VALIDITY THROUGH AUTOMATIC EXTENSIONS

If an eligible noncitizen is not able to renew their employment authorization
and/or EAD before it expires, the noncitizen and the employer may experience
adverse consequences. For the noncitizen, the lack of renewal could cause job
loss, gaps in employment authorization, and loss of income to the noncitizen and
their family member(s). For the noncitizen's employer, the disruption may cause
instability with business continuity or other financial harm. Beyond the
financial and economic impact that gaps in employment create for the employer
and the noncitizen, if the noncitizen engages in unauthorized employment, such
activity may render a noncitizen removable,[13] render a noncitizen ineligible
for future benefits such as adjustment of status,[14] and/or may subject the
employer to civil and criminal penalties.[15]

Before 2016, USCIS regulations indicated that USCIS would “adjudicate an
application [for an EAD] within 90 days” from the date USCIS received the
application.[16] If USCIS did not adjudicate the application within that
timeframe, the applicant was eligible to be issued an interim document
evidencing employment authorization with a validity period not to exceed 240
days. On November 18, 2016, as part of DHS's efforts to implement the
flexibilities provided to noncitizens and employers by the American
Competitiveness in the Twenty-first Century Act of 2000 (AC21), as amended, and
the American Competitiveness and Workforce Improvement Act of 1998, DHS
published a final regulation [17] removing the provision and replacing it with
the current 8 CFR 274a.13(d).

Under the current provision, certain employment eligibility categories receive
an automatic extension of employment authorization and EAD for up to 180 days if
certain conditions (outlined below) are met.[18] DHS created the provision to
prevent gaps in employment authorization and related consequences for certain
renewal applicants,[19] and in light of processing times and possible filing
surges.[20] To significantly mitigate the risks of and consequences related to
gaps in employment authorization for renewal applicants, DHS changed its
regulations at 8 CFR 274a.13(d) to provide certain categories of renewal
applicants with an automatic extension of their EADs and, if applicable, related
employment authorization, for up to 180 days from the expiration date on the EAD
if:

• The renewal applicants timely file an application to renew their employment
authorization and/or EAD on Form I-765 before the EAD expires; [21]

• The renewal Form I-765 is based on the same employment authorization category
on the front of the expiring EAD or is for an individual approved for TPS whose
EAD was issued pursuant to 8 CFR 274a.12(c)(19); [22] and

• The noncitizen's eligibility to apply for employment authorization continues
notwithstanding the expiration of the EAD and is based on an employment
authorization category that does not require the adjudication of an underlying
application or petition before the adjudication of the renewal application, as
announced on the USCIS website.[23]

The following classes of noncitizens filing to renew an EAD may be eligible to
receive an automatic extension of their employment authorization and/or EAD for
up to 180 days, which USCIS discusses in detail at https://www.uscis.gov/
eadautoextend:  [24]

• Noncitizens admitted as refugees (A03).[25]

• Noncitizens granted asylum (A05).[26]

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

• Noncitizens admitted to the United States as citizens of the Federated States
Start Printed Page 26617 of Micronesia or the Marshall Islands pursuant to
agreements between the United States and the former trust territories (A08).[28]

• Noncitizens granted withholding of deportation or removal (A10).[29]

• Noncitizens granted TPS, regardless of the employment authorization category
on their current EADs (A12 or C19).[30]

• Noncitizen spouses of E-1/2/3 nonimmigrants (Treaty Trader/Investor/Australian
Specialty Worker) (A17).[31]

• Noncitizen spouses of L-1 nonimmigrants (Intracompany Transferees) (A18).[32]

• Noncitizens who have properly filed applications for TPS and who have been
deemed prima facie eligible for TPS under 8 CFR 244.10(a) and have received an
EAD as a “temporary treatment benefit” under 8 CFR 244.10(e) and 274a.12(c)(19)
(C19).[33]

• Noncitizens who have properly filed applications for asylum and withholding of
deportation or removal (C08).[34]

• Noncitizens who have filed applications for adjustment of status to lawful
permanent resident under section 245 of the INA, 8 U.S.C. 1255 (C09).[35]

• Noncitizens who have filed applications for suspension of deportation under
section 244 of the INA (as it existed prior to April 1, 1997), cancellation of
removal pursuant to section 240A of the INA, or special rule cancellation of
removal under section 309(f)(1) of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (C10).[36]

• Noncitizens who have filed applications for creation of record of lawful
admission for permanent residence (C16).[37]

• Noncitizens who have properly filed legalization applications pursuant to
section 210 of the INA, 8 U.S.C. 1160 (C20).[38]

• Noncitizens who have properly filed legalization applications pursuant to
section 245A of the INA, 8 U.S.C. 1255a (C22).[39]

• Noncitizens who have filed applications for adjustment of status pursuant to
section 1104 of the Legal Immigration Family Equity Act (C24).[40]

• Noncitizen spouses (H-4) of H-1B nonimmigrants with an unexpired Form I-94
showing H-4 nonimmigrant status (C26).[41]

 * Noncitizens who are the principal beneficiaries or qualified children of
   approved VAWA self-petitioners, under the employment authorization category
   “(c)(31)” in the form instructions to Form I-765 (C31).

Currently, the extension automatically terminates the earlier of up to 180 days
after the expiration date of the EAD, or upon issuance of notification of a
decision denying the renewal request.[42] An EAD that has expired on its face is
considered unexpired when combined with a Form I-797C indicating a timely filing
of the application to renew the EAD.[43] Therefore, when the expiration date on
the front of the EAD is reached, a noncitizen who is continuing in their
employment with the same employer and relying on their extended EAD to show
their employment authorization must present to the employer the Form I-797C to
show continued employment authorization, and the employer must update the
previously completed Form I-9 to reflect the extended expiration date based on
the automatic extension while the renewal is pending. For new employment, the
automatic extension date is recorded on the Form I-9 by the employee (if
applicable) and employer in the first instance. In either case, the
reverification of employment authorization or the EAD occurs when the automatic
extension period terminates.[44]

USCIS policy generally permits the filing of a Form I-765 renewal application up
to 180 days before the current EAD expires.[45] If the renewal application is
granted, the employment authorization and/or EAD generally will be valid as of
the date of approval of the application. If the application is denied, the
employment authorization and/or EAD generally is terminated on the day of the
denial.[46] If the renewal application was timely and properly filed but remains
pending beyond the 180-day automatic extension period and the employee cannot
provide other evidence of current employment authorization, the employee must
stop working on the beginning of the 181st day after the expiration of the EAD,
and the employer must remove the employee from the payroll.[47] As a result,
both the employee and the employer will experience the negative consequences of
gaps in employment authorization and/or EAD validity. Since its promulgation in
2016, the automatic extension provision at 8 CFR 274a.13(d) has helped to
minimize the risk of these negative consequences for applicants who are
otherwise eligible for the automatic extension and their employers.

Recently, however, it has become apparent that the 180-day automatic extension
is not enough for a growing number of renewal applicants. Thousands of renewal
applications remain pending beyond the 180-day automatic extension period
resulting in applicants losing employment authorization and/or EAD validity. The
grave situation that applicants and, in turn, their employers are facing
generally is not the result of the applicant's actions, but instead the result
of several converging factors affecting USCIS operations that have been
compounded by the COVID-19 public health emergency. These factors resulted in a
significant increase in USCIS processing times for several categories of Form
I-765 renewal applications, as described in detail below. DHS has determined
that the 180-day automatic extension provision is currently insufficient to
protect applicants as was originally intended.


III. PURPOSE OF THIS TEMPORARY FINAL RULE


A. OVERVIEW OF ISSUES NEGATIVELY IMPACTING FORM I-765 PROCESSING TIMES

Prior to 2019, USCIS generally kept pace with the steady flow of Form I-765
filings and met its 3-month internal processing goal. However, in the years
leading up to 2019, USCIS began accruing backlogs in adjudications across
various other form types owing to shifting priorities, increased form lengths,
expanded interview requirements, increased Request for Evidence issuance, and
insufficient staffing levels due to a hiring freeze within the Field Operations
Directorate beginning December 2019 and one in the Service Center Operations
Start Printed Page 26618 Directorate beginning February 2020.[48] Those backlogs
in other program areas strained USCIS resources, which, when coupled with USCIS'
worsening fiscal situation beginning in late 2019 and continuing into 2020 and
part of 2021, hindered USCIS' ability to allocate resources to respond to the
increase in Form I-765 filings in a manner that would allow USCIS to continue to
meet its 3-month internal processing goal as it historically had. Additionally,
strain on USCIS' financial resources, which was due in part to USCIS' inability
to update its fee structure since 2016, negatively affected staffing levels and
hampered the ability to quickly respond to shifting workload demands. The
COVID-19 pandemic exacerbated USCIS' precarious fiscal situation, deepening its
fiscal emergency. The pandemic also led to new and significant operational
disruptions, reversing any gains the agency had made on existing backlogs; [49]
these pandemic-related disruptions impacted adjudications of immigration benefit
requests as well as the pipeline of work for which all required pre-adjudicative
processing was completed (making forms “adjudication-ready”), including for Form
I-765 adjudications.[50] In 2021, before USCIS could recover from these fiscal
and operational impacts, USCIS experienced a sudden and dramatic increase in
Form I-765 filings due to: Increased filings in the C09 (pending adjustment)
category generally caused by changes in employment-based visa availability, new
Temporary Protective Status (TPS) designations and redesignations, and the
cyclical nature of the C08 (pending asylum) and C33 (DACA) categories. USCIS has
experienced significant Form I-765 backlogs since then.

Presently, Form I-765 processing times vary, with many categories' processing
times extending far beyond USCIS' 3-month processing goal for the form type. By
December 2021, the median [51] processing time for all initial and renewal Form
I-765 applications was 6.5 months, and the median processing time for all Form
I-765 renewal applications was 5.4 months. For those renewal applicants within
employment authorization categories eligible for the up to 180-day automatic
extension of employment authorization provided by 8 CFR 274a.13(d), as of
December 2021, USCIS' median processing time was 8.0 months.[52] Given these
processing times, DHS recognizes that approximately 87,000 renewal applicants
eligible for an automatic extension under 8 CFR 274a.13(d)(1) are, or soon will
be, past the 180-day automatic extension period of their employment
authorization and/or EAD validity.

The vast majority of applicants filing renewal Form I-765 applications and who
are eligible for the automatic extension of EADs under 8 CFR 274a.13(d) fall
under three filing categories: (1) Noncitizens who have properly filed
applications for asylum and withholding of deportation or removal (C08); (2)
noncitizens who have properly filed applications for adjustment of status to
lawful permanent resident under section 245 of the INA, 8 U.S.C. 1255
(C09); [53] and (3) noncitizens who have properly filed applications for
suspension of deportation under section 244 of the INA (as it existed prior to
April 1, 1997), cancellation of removal pursuant to section 240A of the INA, or
special rule cancellation of removal under section 309(f)(1) of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (C10).[54] As of
December 2021, the processing time range (between median and 93rd percentile)
for Form I-765 renewal applications filed based on the C08 category was 10.1 to
11.5 months; for the C09 category, 7.7 to 11.6 months; and for the C10 category,
6.1 to 8.6 months. By comparison, this processing time range as of December
2020, for the C08 category, was 5.0 to 6.9 months; for the C09 category, 2.5 to
5.6 months; and for the C10 category, 3.2 to 4.2 months.

Expand Table

Table 1—Recent Dramatic Growth in 50th and 93rd Percentile Processing Times for
Form I-765 Renewal Applications Filed by Top Three Filing Categories

Fiscal year 55Pending asylum applicants (C08)Adjustment of status applicants
(C09)Suspension/cancellation applicants (C10)20176.5 to 7.1 months4.6 to 6.5
months6.3 to 8.4 months.20182.8 to 4.4 months4.7 to 8.1 months7.0 to 9.5
months.Start Printed Page 2661920194.1 to 5.2 months5.2 to 7.8 months2.7 to 4.6
months.20205.0 to 6.9 months2.5 to 5.6 months3.2 to 4.2 months.202110.1 to 11.5
months7.7 to 11.6 months6.1 to 8.6 months.

With current processing times far exceeding USCIS' normal 3-month goal, the 180
days of additional employment authorization/EAD validity provided for these
renewal (and some additional) categories by 8 CFR 274a.13(d) is
insufficient.[56] After the additional 180 days is exhausted, many applicants
are still waiting for their Form I-765 renewal applications to be approved. Such
applicants therefore lose employment authorization and/or their EADs become
invalid while the decision on their renewal applications remains outstanding. By
December 31, 2021, approximately 66,000 renewal EAD applicants were in this
situation. By comparison, in December 2020, approximately 3,300 applicants [57]
had Form I-765 renewal applications pending beyond the 180-day automatic
extension.[58]

Without immediate intervention, DHS estimates that the situation will only
worsen over time, as each month, thousands of additional EAD renewal applicants
are at risk of losing their employment authorization and/or EAD validity despite
the 180-day automatic extension period currently provided by regulation.
Beginning in calendar year (CY) 2022, DHS estimates that approximately 14,500 or
more renewal applicants, the majority of whom are in the C08 pending asylum
applicant category, lost or could lose their employment authorization and/or EAD
validity each month unless immediate action is taken to remedy the situation.

The situation for asylum applicants is especially dire because of the
significant time that asylum applicants must wait to become
employment-authorized in the first place. Under regulations that were in effect
from August 2020 through February 2022, most members of this vulnerable
population were not permitted to apply for employment authorization until 365
calendar days had elapsed since the filing of their asylum application.[59]
Although this regulation was vacated [60] in February of 2022, by statute,
asylum applicants still cannot be approved for initial EADs until their asylum
applications have been pending for 180 days.[61] This initial wait time
exacerbates the 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 seek employment for extended
periods of time, it can not only negatively impact that individual, but the
whole family as well.

For those who have already found jobs to support their needs, the potential for
their initial EADs to expire prior to the approval and issuance of a renewed EAD
may force them back into instability caused by a gap in the ability to legally
work. Some employers, notwithstanding possible violation of INA section 274B
governing unfair immigration-related employment practices (8 U.S.C. 1324b), or
other laws, may also be hesitant to accept EADs as proof of employment
authorization or hire employees who present EADs in the first place if it
appears maintaining their employment will be difficult due to potential lapses
in employment authorization. Continuous employment authorization during the
pendency of an asylum application is vital for asylum seekers in the United
States in order to access housing, food, and other necessities. In addition,
asylum seekers may need income or employment to access medical care, mental
health services, and other resources, as well as to access legal counsel in
order to pursue their claims before USCIS or the Executive Office for
Immigration Review (EOIR). Access to mental health services is particularly
crucial for asylum seekers due to the prevalence of trauma-induced mental health
concerns, including depression and post-traumatic stress disorder (PTSD). The
physical harm experienced by many asylum seekers necessitates continuous medical
care for extended periods of time. Finally, the purpose for which asylum seekers
came to the U.S. is to seek long-term protection by receiving asylum. Legal
assistance may be key for an asylum seeker to successfully claim asylum,[62] but
it is also often expensive.

Start Printed Page 26620


B. EFFECT OF OPERATIONAL CHALLENGES ON FORM I-765 ADJUDICATIONS

1. PRECARIOUS FISCAL STATUS IN 2020 AND PART OF 2021

USCIS is a fee-based agency that relies on predictable fee revenue and its
carryover from the previous year. USCIS began experiencing fiscal troubles as
early as December 2019, when at least one USCIS directorate initiated a hiring
freeze.[63] These fiscal troubles were due in part to the fact that USCIS has
not been able to update its fee structure since the 2016 Fee Rule [64]
(including fees for Form I-765), which does not fully cover the costs of
administering current and projected volumes of immigration benefit requests.

USCIS promulgated a new Fee Rule in August 2020 to address this fee/cost
disparity.[65] In September 2020, however, the 2020 Fee Rule was enjoined before
it took effect and remains under a preliminary injunction.[66] As such, the
current fee for Form I-765 remains at $410, the fee set by the earlier 2016 Fee
Rule.[67] The 2016 Fee Rule also exempts applicants from paying a fee if filing
a Form I-765 to request renewal or replacement under 8 CFR 274a.12(c)(9)
(pending adjustment of status application), as well as some additional
categories.[68]

The 2020 Fee Rule would have made various changes to USCIS filing fees to help
cover the increased cost of adjudicating benefit requests, including a 34
percent increase for the Form I-765 filing fee to $550, and removing fee
exemptions for Form I-765 renewals or replacements for applicants filing under 8
CFR 274a.12(c)(9), among other categories.[69] USCIS continues to rely on the
fee schedule established in the 2016 Fee Rule, which does not fully account for
current costs associated with adjudicating benefit requests. This unsustainable
fiscal situation has, among other things, resulted in the inability to fund
sufficient new officer positions to handle the heavy adjudication workload,[70]
meaning that USCIS was already in a precarious financial position with regard to
staffing when the COVID-19 pandemic began.

2. PUBLIC HEALTH EMERGENCY

On January 31, 2020, the Secretary of Health and Human Services (HHS) declared a
public health emergency under section 319 of the Public Health Service Act (42
U.S.C. 247d), in response to COVID-19, which is caused by the SARS-CoV-2
virus.[71] On February 24, 2021, the President issued a continuation of the
national emergency concerning the COVID-19 pandemic.[72] Effective October 15,
2021, HHS renewed the determination that “a public health emergency exists and
has existed since January 27, 2020 nationwide.” [73] On January 14, 2022, and as
a result of the continued consequences of the COVID-19 pandemic, HHS renewed yet
again the determination that a public health emergency exists.[74]

As noted above, USCIS was already in a precarious financial situation in 2019.
This was severely exacerbated by a significant drop in receipts across many of
the most common benefit types at the beginning of the COVID-19 pandemic in
spring 2020.[75] The significant drop in revenue USCIS experienced early in the
pandemic led the agency to plan for a sweeping furlough of approximately 70
percent of its workforce to avoid financial collapse, including furloughing
immigration services officers who adjudicate the Form I-765.[76] To avoid the
drastic furlough measures, USCIS employed every available means to preserve
sufficient funds to meet payroll and carryover obligations. These measures
included drastic cuts for supplies, facilities, overtime, and contractor support
services, as well as an agency-wide hiring freeze lasting from May 1, 2020,
through March 31, 2021. The loss of overtime funds hindered USCIS' ability to
address and mitigate backlogs through use of existing staff, which has been a
strategy used successfully in the past to ensure processing times remain within
goals. For example, in FY 2019, USCIS used $5.52 million of overtime funds for
assigned staff to conduct border case [77] processing after working business
hours and on the weekends, instead of assigning more staff to those caseloads
during regular work hours, which would have pulled them away from affirmative
asylum processing.

Through the use of overtime, USCIS was able to continue to maintain its assigned
staffing levels to affirmative asylum processing, but this option was not
available in 2020, due to USCIS' worsening fiscal situation beginning in late
2019 and continuing into 2020 and part of 2021. USCIS took action to avert a
fiscal crisis, including limiting Start Printed Page 26621 spending to salaries
and mission-critical activities; making drastic cuts to spending on supplies,
facilities, and contractor support services; and eliminating overtime. The loss
of contractor support services also hindered USCIS' ability to intake filings
efficiently and prepare cases for adjudication by officers. The agency-wide
hiring freeze expanded upon individual USCIS components' hiring freezes already
in place.

These fiscal issues had a direct impact on staffing, and insufficient staffing
levels directly impacted the processing times for Form I-765. In addition to a
direct shortage of staff due to hiring freezes, USCIS experienced a noticeable
increase in attrition following announcement of a potential furlough that could
have impacted nearly 70 percent of employees.[78] Although DHS cannot quantify
employees' reasons for leaving, it is likely that the threatened furlough and
uncertain fiscal status of the agency played a role. The hiring freeze also
meant that the higher-than-normal number of vacancies could not be filled.
Additionally, a number of initiatives have taken staff away from their normal
duties such as important temporary assignments to the southern border, efforts
relating to unaccompanied children, and processing petitions and applications by
or on behalf of Afghan evacuees. All these factors contributed to a decrease in
Form I-765 completions. For example, in FY 2019, the Service Center Operations
Directorate (SCOPS) allocated 343,399 officer hours to its Form I-765
workload [79] and completed 1,443,235 adjudications (mostly Form I-765
applications filed under 8 CFR 274a.12(c)(8), followed by (c)(33) (granted DACA)
and (c)(3)(B) (student post-completion optional practical training (OPT)). By
comparison, in FY 2020, SCOPS allocated 327,947 (or approximately 4.5 percent
fewer) officer hours to the same workload and subsequently was only able to
complete 1,379,745 (or approximately 4.4 percent fewer) adjudications. These
reductions were partly attributable to the overall decrease in staff, as well as
competing priorities which factor into how existing resources are allocated. At
the start of FY 2020, SCOPS had 5,102 employees on board. This diminished to
4,886 at the start of FY 2021 and 4,731 at the start of FY 2022 as the effects
of attrition and the hiring freeze continued. This overall decrease of
approximately 7.3 percent does not include the additional loss of I-765
adjudication hours that stemmed from SCOPS supporting several programs
requesting detailees.[80] The number of detailees temporarily missing from the
SCOPS workforce has not been static, but exceeded 200 employees at points during
FY 2021, leaving SCOPS staffed at levels less than 89 percent of what existed
going into FY 2020. This data does not include contractor hours, which also were
severely impacted by USCIS' fiscal situation as USCIS was forced to reduce the
number of contractors available to assist with case processing.

Nonetheless, despite the reduction in officer hours, USCIS was able to maintain
its 3-month processing goal up until December 2020, due to a corresponding
reduction in Form I-765 receipts. This changed in CY 2021, when USCIS
experienced an extraordinary, 2-month surge of Form I-765 filings in spring 2021
and a sustained increase of filings thereafter, which is discussed further in
Section C below. Despite the surge of Form I-765 filings, SCOPS was able to
allocate only 314,924 officer hours (or approximately 4.0 percent fewer than FY
2020 and approximately 8.3 percent fewer than FY 2019) to its Form I-765
workload and completed only 1,249,548 adjudications (or approximately 9.4
percent fewer than FY 2020 and approximately 13.4 percent fewer than FY 2019)
due to insufficient staffing and competing priorities. USCIS was unable to surge
additional resources to increase officer hours adjudicating Form I-765
applications because of USCIS' limited resources and the need to manage e other
competing priorities in FY 2021. For example, USCIS surged officers to
adjudicate employment-based Form I-485 applications to minimize the number of
employment-based immigrant visas that would go unused at the end of FY 2021,
after an extraordinary number of such unused family-preference visa numbers from
FY 2020 “fell across” to the employment-based visa allocation for FY 2021, see
generally INA 201(d)(2)(C), 8 U.S.C. 1151(d)(2)(C), due primarily to Department
of State consular closures caused by the COVID-19 pandemic.

Start Printed Page 26622
Expand Table

Table 2—Impact of Steadily Decreasing Staffing Levels on SCOPS' Form I-765
Completions

[ initial and renewal applications ]

Fiscal yearOfficer hours allocatedForm I-765
completions2019343,3991,443,235.2020327,947 (approximately 4.5 percent fewer
than 2019)1,379,745 (approximately 4.4 percent fewer than 2019).2021314,924
(approximately 8.3 percent fewer than 2019 and 4.0 percent fewer than
2020)1,249,548 (approximately 13.4 percent fewer than 2019 and 9.4 percent fewer
than 2020).Note: This data does not include contractor hours, which also were
severely impacted by USCIS' fiscal situation as USCIS was forced to reduce the
number of contractors available to assist with case processing. SCOPS'
contractor staff has been reduced by approximately 8.2% since October 1, 2020.

The Field Office Directorate's National Benefit Center (NBC), which also
adjudicates a number of Form I-765 applications [81] observed a similar
reduction in staff and completions.

Expand Table

Table 3—Impact of Steadily Decreasing Staffing Levels on NBC's Form I-765
Completions

[ initial and renewal applications ]

Fiscal yearOfficer hours allocatedForm I-765
completions2019115,510612,464.2020112,266 (approximately 2.8 percent fewer than
2019)605,105 (approximately 1.2 percent fewer than 2019).2021102,099
(approximately 11.6 percent fewer than 2019 and 9.1 percent fewer than
2020)509,973 (approximately 16.7 percent fewer than 2019 and 15.7 percent fewer
than 2020).Note: This data does not include contractor hours, which also were
severely impacted by USCIS' fiscal situation as USCIS was forced to reduce the
number of contractors available to assist with case processing.

3. OTHER IMPACTS TO OPERATIONS

In response to the declaration of a public health emergency, USCIS instituted a
number of changes to protect USCIS employees and immigration benefit applicants.
From March 18 through June 3, 2020, USCIS closed all field offices and asylum
offices to the public, nearly halting all in-person services.[82] At USCIS field
offices, officers conduct in-person interviews related to Form I-485,
Application to Register Permanent Residence or Adjust Status, as well as Form
N-400, Application for Naturalization, to become a U.S. citizen, among other
work. At USCIS asylum offices, officers conduct in-person interviews of asylum
applicants (using Form I-589, Application for Asylum and Withholding of
Removal). Upon reopening to the public, many asylum offices operated at lower
capacity than before the halt in in-person services. Interviewing rooms that
previously accommodated asylum officers, asylum applicants, interpreters (if
present), and attorneys (if present) all in one room, now would accommodate just
the asylum officer, with applicants and any other participants each sitting in
separate interview rooms and connecting electronically. This setup substantially
decreased daily interview capacity.[83]

SCOPS' service centers and the NBC, which are not open to the public, never
closed, but all Federal functions that could be accomplished at an alternate
location were designated for telework to minimize in-person contact and allow
proper social distancing for Federal and contract staff whose work required
on-site presence. In the early weeks of COVID-19 restrictions, assignments were
adjusted to provide telework-suitable work as logistics relating to industrial
hygiene were put in place to expand capacity for on-site functions while
providing appropriate protections for on-site workers. Service centers and the
NBC continued operations by expanding telework capabilities; however, logistics
associated with completing work that could not be conducted at home, such as
accepting filings, mailroom activities, and file movement, remained a challenge.
There was high absenteeism due to COVID-19 quarantine rules among contractors
engaged in receipt and file movement activities, which created “frontlogs” in
receipts—delays in entering receipt data into USCIS systems—as well as delays in
other areas requiring physical handling of files and mail. Furthermore, Form
I-765 generally is adjudicated on Start Printed Page 26623 a paper receipt
file,[84] and up until 2020, application intake and initial processing generally
was handled by Federal contractors, many of whom were terminated due to USCIS'
fiscal troubles as detailed above. Proactive adjustments to workspaces,
schedules, and file movement practices restored these functions despite a
contractor workforce shortfall, but adjustments took approximately 3-5 months to
develop and take effect.

USCIS Application Support Centers (ASC), which primarily collect biometrics such
as photographs and fingerprints in relation to immigration benefit requests,
were similarly impacted by the COVID-19 public health emergency. ASCs were
temporarily closed from March 18 through July 12, 2020, and began a phased
reopening with limited capacity on July 13, 2020. Under normal circumstances,
individuals who must appear at an ASC are scheduled to do so within 3-4 weeks of
USCIS receiving the underlying application; however, the lengthy closures
created massive appointment backlogs. The ASC appointment backlog reached its
peak of 1.4 million in January 2021. Although this backlog has been largely
addressed, the downstream effects linger in many work streams.[85] Historically,
there have been limited Form I-765 categories that require biometrics
submission;  [86] however, the Employment Authorization Applications Rule and
the Asylum Application, Interview, and Employment Authorization for Applicants
Rule (“Broader Asylum EAD Rule”), 85 FR 38532 (June 26, 2020), imposed a
biometrics collection requirement for initial and renewal Forms I-765 in the C08
asylum applicant category—which represents approximately 58 percent of the
renewal EAD receipts filed that are eligible for the automatic extension.
Consequently, when ASCs were closed, most Form I-765 renewal applications in the
C08 category could not be processed.[87] Furthermore, once ASCs reopened, a
large number of applications of varying types needed to be rescheduled, yet
there were a limited number of ASC appointments available. This led to delays in
applicants receiving ASC appointments, which further delayed the processing of
their applications, including Form I-765 renewal applications in the C08
category. The delay in biometrics capture created an interruption to
adjudications by preventing applications from getting to the
“adjudication-ready” stage. Many categories of I-765s are dependent on their own
biometrics requirement or a biometrics requirement associated with an underlying
benefit, resulting in bottlenecks that slowed overall adjudications and
increased processing times. The new biometrics collection requirement for Form
I-765 renewal applications in the C08 category thus played a significant role in
the downstream effects of ASCs' temporary closures.

In addition, while adjudication of Form I-765 does not generally include an
in-person interview, some Forms I-765 are based on pending applications that do
involve in-person interviews. With the fiscal and operational constraints
outlined above, USCIS had processing delays in adjustment of status applications
and asylum applications; applicants seeking employment authorization based on a
pending adjustment of status application or asylum application comprise the
great majority of the filing population seeking renewal EADs and eligible for an
automatic extension of their EADs under 8 CFR 274a.13(d).[88] Owing to USCIS'
inability to adjudicate interview-dependent adjustment of status and asylum
applications while its offices were closed, those cases were pending longer than
usual, in addition to an influx of new applications. With those underlying
applications taking longer to process, the population of applicants who needed
to request EAD renewals during the pendency of their primary applications
increased.[89]

Even though USCIS reopened its ASCs, field offices, and asylum offices in
mid-2020, USCIS still is working to return to pre-pandemic levels of operation,
with varying progress across programs. For example, social distancing guidelines
result in reduced interview capacity and productivity for some
interview-dependent benefit requests, including some adjustment of status and
asylum applications. USCIS implemented measures to recapture productivity under
social distancing protocols, including video-assisted interviewing, increased
use of telephonic interpreters,[90] expanded Start Printed Page 26624 work
flexibilities for USCIS employees,[91] and remote applicant-centric services
such as a pilot remote-attorney participation program.[92] However, the impacts
of the operational disruptions in 2020 are still evident in USCIS' prolonged
processing times, illustrating USCIS' continued struggle to address the pending
cases that accrued when offices were closed while attempting to keep pace with
new filings (which, in the case of Form I-765 renewals, unexpectedly surged in
2021, as described below).[93]

Additionally, USCIS continues to provide flexibilities in recognition of the
pandemic's ongoing impacts on benefit requestors, which in some cases negatively
impact the efficiency of USCIS operations.[94] For example, USCIS continues to
provide rescheduling flexibilities for interviews and ASC appointments, limit
the number of staff and members of the public that may appear in person at a
USCIS office, and provide flexibilities pertaining to responses to Requests for
Evidence (RFEs) and Notices of Intent to Deny (NOIDs) by considering a response
received within 60 calendar days after the response due date set in the request
or notice before taking any action.[95] While USCIS believes these steps have
been critical to address the impacts of the COVID-19 pandemic, these measures
have not been implemented without costs. Limiting the number of in-person staff
at any given time may reduce the number of interviews USCIS can conduct in any
given day, although USCIS is exploring additional alternatives to in-person
interviewing that may mitigate this impact. Providing rescheduling flexibilities
for interviews and time for responses for RFEs or NOIDs also prolong the
officer's adjudication times. The downstream effect of delays in initial file
processing, delays at the ASC and field offices, and insufficient staffing
levels due to USCIS' fiscal situation in calendar years 2019 and 2020, as well
as delays caused in certain workloads due to workforce shifts to ensure timely
adjudication of other benefits, contributed to USCIS accruing an overall net
backlog [96] of approximately 5.1 million cases as of the end of December 2021,
of which 930,000 (approximately 18%) were pending Form I-765 applications.


C. SUDDEN INCREASE IN FORM I-765 FILINGS IN 2021

1. COMPARING FY 2021 RECEIPTS TO PRIOR YEARS' RECEIPTS

The most recent contributing factor to the severe backlog and increased
processing times for Forms I-765 is a substantial and unprecedented 2-month
increase of Form I-765 renewal filings in March and April 2021, and a sustained
increase in filings thereafter. In CY 2019, the average number of monthly
renewal applications filed for the C08, C09, and C10 categories combined was
46,715. In CY 2020, the average number of monthly renewal applications filed for
these three categories was 43,232. In March 2021, the renewal receipt numbers
for these three categories spiked 56 percent over the previous month and 76.4
percent over the monthly average total for 2020. In April 2021, the renewal
receipt numbers for these three categories remained elevated such that they were
25.6 percent higher than February 2021, and 53.6 percent over the monthly
average total for 2020. The March and April 2021 increase in Form I-765 renewal
applications was unexpected based on historical filing patterns and appears to
be related to litigation.[97]

Start Printed Page 26625
Expand Table

Table 4—Surge in Renewal Form I-765 Filings

MonthC08 categoryC09 categoryC10 categoryAverage totalFebruary
202130,85714,6618,36752,885March 202152,00719,58910,84082,436April
202142,10115,1899,13466,424May 202132,75113,3327,88753,960

In the eight months following April 2021, the receipt numbers for these
categories fell to an average of 52,400 receipts per month, but that was still
21 percent above the average monthly total for CY 2020. The increase in the
number and duration of pendency of asylum and adjustment of status applications,
which form the basis for the two most populous EAD filing categories eligible
for the automatic extension under 8 CFR 274a.13(d)(1), may have led to this
sustained increase in applications for initial and renewal employment
authorization (in the C08 and C09 categories, respectively), which further
compounded the Form I-765 adjudication backlog.[98]

Specifically, in the years leading up to FY 2022, asylum application receipts
outpaced available resources leading to an increase in pending asylum cases,
both in affirmative and defensive filings, as shown in Table 5.[99] The increase
in pending asylum cases contributed to the increase in C08 renewal filings in FY
2021, which further impacted the Form I-765 renewal backlog.

Expand Table

Table 5—Total Asylum Cases Pending

 DOJ 100USCIS 101TotalTotal Asylum Cases Pending in:FY 2017 (Sep
2017)377,140289,835666,975FY 2018 (Sep 2018)473,510319,202792,712FY 2019 (Sep
2019)608,976339,836948,812FY 2020 (Sep 2020)647,923386,0141,033,937FY 2022 (Dec
2021)628,551432,3411,060,892

The number of employment-based adjustment of status applications increased
significantly in FY 2021, as well, due to the inordinate number of
employment-based visas that became available as a result of unusually low visa
usage in other categories in FY 2020 due to the COVID-19 pandemic. At the start
of FY 2021, there were approximately 126,000 employment-based adjustment of
status applications pending with USCIS. Approximately 313,000 employment-based
adjustment of status applications were received during FY 2021, which likely
contributed to the increase in C09 initial filings in FY 2021, consequently
further taxing USCIS' resources to timely process renewal applications. USCIS
also saw significant increases in filings across other benefit request types
during CY 2021.[102]

This surge and sustained increase in Form I-765 receipts over the course of CY
2021 as compared to the previous calendar year compounded what otherwise might
have been a moderate Form I-765 backlog and created a substantial spike in
processing times. In CY 2021, USCIS received approximately 2,550,000 initial and
renewal Forms I-765, which was 22 percent higher than the volume received in CY
2020 (approximately 2,090,000) and 15 percent higher than the volume received in
CY 2019 (approximately 2,210,000). Similarly, in CY 2021, USCIS received
approximately 1,260,000 Form I-765 renewal applications, which was 21 percent
higher than the volume received in CY 2020 (approximately 1,040,000) and 13
percent higher than the volume received in CY 2019 (approximately 1,120,000).

Expand Table

Table 5A—Initial and Renewal Form I-765 Filings

Calendar yearForm I-765 filingsSurge or difference20192,210,00020202,090,0005
percent lower than 2019.20212,550,00015 percent higher than 2019. 22 percent
higher than 2020.

Expand Table

Table 5B—Renewal Form I-765 Filings

Calendar yearForm I-765 filingsSurge or difference20191,120,00020201,040,0007
percent lower than 2019.20211,260,00013 percent higher than 2019. 21 percent
higher than 2020.

As demonstrated above, calendar years 2020 and 2021 were difficult years for
USCIS because unprecedented Start Printed Page 26626 financial strains led to
staffing issues, resulting in an inability to handle the 2-month spike and
monthly increase in filings in CY 2021 over CY 2020. The average monthly
receipts in 2021 for the automatic extension categories were 60,300, which was
13,500 per month (or 29 percent) higher than 2020 monthly averages. In addition
to this higher overall receipt volume in 2021, there was a surge in receipts in
March 2021 (88,500) and April 2021 (71,200) that led to a rapid increase in
pending applications. On top of the higher receipt volumes, due to staffing
issues, the average number of monthly completions in 2021 was 33,900 per month,
which was 10,600 per month (or 24 percent) lower than 2020 monthly averages. The
combination of higher receipts and lower completions led to increased processing
times, which downstream resulted in higher numbers of renewal applications
pending past the 180-day automatic extension period.

2. WORKFORCE PLANNING SHORTFALL

USCIS normally uses an annual workforce planning process to assess staffing
requirements, known as the Staffing Allocation Model (SAM). The SAM is focused
on allocating staff to process the anticipated number of new/incoming receipts
for all workloads for the next fiscal year. Workforce planning is based on USCIS
estimates for each adjudication workload for the coming year. These workload
estimates are established through a cross-disciplinary committee, the Volume
Projection Committee, that forecasts receipts on the basis of statistical
modeling and any recent policy changes. In 2021, new receipts rose too rapidly
to provide new staffing allocations within the SAM for both new receipts and
backlog cases. In other words, despite the predictions based on data and
historic trends, the Form I-765 filings in FY 2021 were significantly greater
than forecasted. USCIS relies on a combination of internal processes and plans
to plan for backlog reduction.[103]


D. EMERGENCY TEMPORARY SOLUTION TO ADDRESS CURRENT BACKLOG

The sudden 2-month increase in Form I-765 renewal filings in March and April of
2021 and sustained overall increase in Form I-765 renewal receipts thereafter
prompted USCIS to directly address the growing backlog of Form I-765 filings.
Historically, USCIS had sufficient resources to address growing backlogs by
allocating additional officers to a particular workload. However, USCIS was
unable to do so in the summer of 2021 due to understaffing, including reduced
contracting resources resulting from the prior years' fiscal situation; the
broad scope of backlogs across numerous benefit types; and competing priorities,
as discussed above. USCIS was, however, able to apply overtime funds to the
renewal Form I-765 workload in an attempt to control the growing backlog during
the last quarter of FY 2021.[104] Indeed, USCIS observed an increase in Form
I-765 renewal completions, however, it was not enough to match the increased
volume of receipts and therefore USCIS' responsive measures mitigated but did
not halt the backlog growth.[105] Considering the operational constraints
described above, USCIS also explored programmatic improvement initiatives and
updates to its policy and operational guidance in the summer of 2021 to attempt
to address prolonged Form I-765 processing times and their impact. For example,
USCIS launched a backlog reduction effort in September 2021 to assess other
options available to the agency to address the severe and growing Form I-765
backlogs.[106] It has become apparent to USCIS, however, that its limited
resources are insufficient to appropriately address the growing backlogs, with
the incoming volume of Form I-765 renewal filings showing no signs of slowing.
Further, USCIS has assessed that the conventional measures USCIS had applied (
e.g., overtime) and was continuing to explore ( e.g., through the backlog
reduction effort) will not be able to timely address the impending loss of
employment authorization and EAD validity.

1. CURRENT MEASURES TO REDUCE THE BACKLOG AND REDUCE PROCESSING TIMES

Addressing Form I-765 processing times is a priority for USCIS. Backlogs in
general are a significant concern for the applicants who are applying for
benefits with USCIS because, as the backlogs increase, applicants and
petitioners experience longer wait times to receive a decision on their benefit
requests. This is especially concerning where the backlog involves employment
authorization, which is critical to applicants' and their families' livelihoods
as well as U.S. employers' continuity of operations. USCIS understands the
impact that delays in receiving decisions and documentation have on applicants
and petitioners and is striving to address the backlogs and the resulting
negative consequences through a number of measures, including but not limited to
this TFR.

USCIS continues to recover from the pandemic-related impacts on operations and
revenue, leading to a gradually improving fiscal situation, return to stability,
and renewed capacity to undertake initiatives to reduce backlogs. USCIS lifted
the agency-wide hiring freeze in March 2021. With the hiring freeze lifted,
USCIS was able to begin hiring staff in an attempt to return to pre-pandemic
staffing levels.[107] Initial hiring was largely internal in order to fill
promotional vacancies, with public job announcements to hire from outside USCIS
following. This effort's impact is not realized immediately, as it is lengthy,
time-consuming, and ongoing. Start Printed Page 26627 The hiring process itself
is lengthy as it includes posting the job announcement, reviewing resumes,
providing qualified candidates' information to the hiring office, assessments,
interviews, selections, and background checks prior to a new employee entering
on duty. New hires then go through orientation, basic training, duty-specific
training and mentoring. The entire process from posting to a new hire reaching
full proficiency takes several months.

USCIS is also in the process of developing a new Fee Rule to recoup adjudicatory
costs incurred at current levels, and to support the agency's ability to match
staffing levels with its workload in a sustainable way. To effect more immediate
change with EAD renewals, USCIS reviewed its policies and procedures to update
policy guidance,[108] expanded use of overtime hours as funding permitted, and
applied innovative approaches to backlog reduction using technology in strategic
ways, which initially is showing promising results.[109] In addition, USCIS is
focused on addressing prolonged processing times affecting applications and
petitions that form the basis of a Form I-765 filing and, therefore, indirectly
impact Form I-765 renewal processing times, such as in the case of asylum or
adjustment of status applications where a Form I-765 filing is based on the
continued pendency of such application.

For example, an applicant seeking asylum is eligible for employment
authorization on the basis of the pendency of the asylum application.[110] USCIS
currently grants employment authorization based on a pending asylum application
in 2-year increments.[111] If an asylum application is pending for up to 5 years
or more, as is currently the case for some applications,[112] then an applicant
must file to renew employment authorization at least twice. If processing times
for asylum applications were reduced to 3 years, the applicant would need only
file to renew employment authorization once, saving USCIS adjudicatory
resources.

Another area in which USCIS is actively prioritizing its workload is
employment-based adjustment of status applications as backlogs in adjudication
of these applications also have downstream effects on EAD application
adjudications, as described above. While USCIS normally processes approximately
115,000 employment-based adjustment of status applications annually,[113]
generally to correspond with the number of available employment-based immigrant
visas minus the number typically issued by Department of State annually, USCIS
prioritized processing employment-based adjustment applications to maximize
available visa usage in FY 2021. By the end of FY 2021, USCIS had processed and
approved approximately 172,000 employment-based adjustment of status
applications, an increase of approximately 50 percent above the typical
baseline; [114] however, approximately 257,000 remained unadjudicated, including
approximately 75,000 impacted by priority date retrogressions that may leave
them pending for many years, and thereby eligible for C09 EADs over this
extended period.[115] To the extent possible, USCIS is committed to prioritizing
employment-based adjustment of status applications to utilize the available visa
numbers each fiscal year; doing so relieves applicants from filing Forms I-765
to seek renewal EADs while their adjustment of status application remains
pending since lawful permanent residents are employment authorized incident to
status.[116] Therefore, the more adjustment of status applications USCIS is able
to process, the fewer Form I-765 renewal applications USCIS will receive (based
on pending INA 245 adjustment of status applications).

DHS expects that USCIS' backlog reduction efforts in these areas will positively
impact Form I-765 backlogs by reducing the volume of Form I-765 filings.
However, we anticipate that the impact of these backlog reduction efforts will
not be immediately felt by applicants with expiring or expired employment
authorization. Therefore, DHS has determined that in the interim, urgent action
is needed to address the Start Printed Page 26628 plight of a growing number of
EAD renewal applicants who have experienced or may in the near future experience
a gap in their employment authorization and/or EAD because of USCIS'
unprecedented processing times.

2. EXISTING AUTOMATIC EXTENSION PERIOD OF UP TO 180 DAYS TEMPORARILY NOT
SUFFICIENT

DHS is aware of the importance of employment authorization and EADs as evidence
of employment authorization for applicants' and their families' livelihoods, as
well as their U.S. employers' continuity of operations and financial health. DHS
is also aware of the potential detrimental impact that gaps in employment
authorization may have on an applicant's eligibility for future immigration
benefits, should the applicant engage in unauthorized employment during the
gap,[117] and on the U.S. employer's responsibilities under the INA. DHS also
acknowledges that the substantial increase in backlogs and prolonged processing
times across USCIS-administered benefit requests are not the fault of applicants
but have had and continue to have significant adverse consequences for
applicants and employers awaiting a USCIS decision on pending Form I-765 renewal
applications.

As noted, the current 180-day automatic extension under 8 CFR 274a.13(d)(1) for
certain applicants who have properly filed Form I-765 for renewal of their
employment authorization and/or EADs is an insufficient time period to ensure
against lapses in employment authorization and/or EAD validity.[118] In December
2020, the median processing time for Form I-765 renewal applications eligible
for the automatic extension was 3.6 months (close to USCIS' processing goals),
ranging from 2.5 months to 5 months.[119] At the end of December 2020, there
were approximately 3,300 applicants whose Form I-765 renewal applications were
still pending past their 180-day auto-extension period.

However, Form I-765 processing times and Form I-765 renewal applications pending
beyond the 180-day period increased rapidly in the second half of CY 2021 and
continue to increase in CY 2022 despite backlog mitigation efforts. As of
December 31, 2021, the processing time for EAD renewal applications (all
categories) completed by USCIS ranged from 6.1 months (median) to 10.1 months
(93rd percentile) and there were approximately 66,000 applicants whose Form
I-765 renewal applications were still pending past their 180-day automatic
extension period. This means that, as of December 31, 2021, approximately 66,000
applicants—at no fault of their own and because of circumstances currently faced
by USCIS—were not authorized to work and/or no longer had a valid EAD to
evidence their employment authorization,[120] potentially jeopardizing their
families' livelihoods.

Expand Table

Table 6—Number of Form I-765 Renewals Pending Past Their 180-Day Auto-Extension
Period

DateMedian processing time (months)Renewals pending past 180-day periodDecember
31, 20203.63,300 renewal applications (approx.).December 31, 20218.066,000
renewal applications (approx.).

This also means that a large majority of these workers, and their U.S.
employers, would not be able to meet the verification or reverification
requirement for completion of Employment Eligibility Verification (Form
I-9),[121] resulting in terminations and incurring the costs of finding
replacement workers, if possible. If DHS does not immediately increase the
180-day automatic extension period, the total number of applicants with renewal
applications pending past the 180-day auto-extension period is expected to
increase by approximately 14,500 per month.[122] This estimated monthly increase
of 14,500 applicants is based on recent trends.

Although USCIS has been diligently trying to reduce the adjudication backlog and
EAD processing times, USCIS is unable to quickly return to its processing goals
due to the volume of pending cases, new filings that USCIS continues to receive,
and time needed to increase staffing needs to meet existing demands. As of
December 31, 2021, USCIS had approximately 520,000 pending EAD renewal requests
in automatic extension-eligible categories and continues to receive
approximately 55,000 additional Form I-765 applications in automatic
extension-eligible categories per month. These additional renewal applications
are adding to the current backlog, given that USCIS currently completes
approximately 33,000-34,000 such requests per month. Further, as of November 6,
2021, 905 out of 8,721 (or, 10% of) officer positions allocated to the Field
Office Directorate (FOD) and the Service Center Operations Directorate (SCOPS)
were vacant and USCIS estimates it may take at least until the end of CY 2022
for USCIS to fill such vacancies.[123]

The impact of the prolonged processing times is stark when considering the
number of individuals who will lose employment authorization and/or EAD validity
each month if immediate action is not taken. As indicated, the total number of
renewal applications pending past the 180-day period, which was approximately
66,000 as of December Start Printed Page 26629 31, 2021, is expected to increase
by approximately 14,500 each month; that monthly figure represents approximately
10,500 asylum applicants, 3,000 adjustment of status applicants, and 1,000
suspension/cancellation applicants per month.

DHS therefore has determined that an automatic extension period of up to 180
days at 8 CFR 274a.13(d) is temporarily no longer sufficient to meet its
original purpose and goal for which it was implemented: To prevent and/or
mitigate the risk of gaps in employment authorization and documentation for a
majority of eligible applicants. Due to the presently insufficient staffing
levels, which may take USCIS at least until the end of CY2022 to fill and
additional time to train, USCIS may be unable to significantly increase its rate
of completion in the immediate term, and therefore, currently may be unable to
meaningfully reduce the volume of pending cases while also keeping pace with the
inflow of Form I-765 filings. While USCIS will continue to explore ways to
improve adjudicative efficiencies in the short and long term, USCIS expects Form
I-765 backlogs will continue in the immediate future as it works to implement
changes to improve Form I-765 processing efficiencies, hire and train new
officers, and take additional steps to reduce the backlog and processing times.
This temporary and extraordinary circumstance has created an emergent and urgent
situation for noncitizens and U.S. employers as gaps in employment authorization
and documentation have a highly detrimental impact on noncitizen workers and
their U.S. employers. This is taking place at a time when such employers already
are facing unprecedented workforce disruptions due to the COVID crisis, which
further underscores the importance of immediate action.[124] While the high
unemployment rate has declined significantly, the United States is now
experiencing high demand for labor as compared to the available supply of
workers. As of February 2022, the labor force participation rate was at 62.3
percent, having recovered about 66 percent of what was lost at height of the
COVID-19 pandemic compared with the February 2020 rate of 63.4 percent.[125]

3. TEMPORARY 360-DAY INCREASE BEYOND 180 DAYS NEEDED FOR 540-DAY PERIOD

DHS has determined that providing additional time beyond the current 180 days
during which an eligible applicant's employment authorization and/or EAD are
automatically extended is necessary to mitigate the risk to applicants of
incurring a lapse in employment authorization or documentation while USCIS works
toward reducing processing times.[126] As stated above, USCIS receives
approximately 55,000 Form I-765 renewal requests per month and completes
approximately 33,000-34,000 requests per month, leading to the growing backlog.
Without intervention, this processing rate could result in a median processing
time of 14.2 months for all Form I-765 renewals by the end of December 2022.
Considering the current range of processing times, a significant number of these
renewal applications likely would take longer than the 14.2-month median time,
up to 18 months.[127]

Based on the trend USCIS has observed in the growth of processing times for Form
I-765 renewal applications in the past year (see section II.A.Table1 for more
details), and USCIS' projection of similar growth through the end of CY
2022,[128] DHS calculated that a temporary increase of 360 days (beyond the
180-day period) for a total of 540 days, or approximately 18 months) is an
appropriate increase of the automatic extension period. Such period better
reflects current and potential processing times for Form I-765 renewals. By
extending the automatic extension period, this TFR therefore is intended to
reduce the potential for disruptions in employment authorization and EAD
validity for those who otherwise qualify for an automatic extension while USCIS
continues to work to reduce its processing times to return to its goal of
processing Form I-765 within 3 months.

To determine how long DHS should provide this temporary increased automatic
extension period, DHS assessed the pending and incoming volume of Form I-765
renewal filings against USCIS' resources. As of December 31, 2021, USCIS had
approximately 520,000 pending EAD renewal requests in automatic
extension-eligible categories. To achieve USCIS' processing goal of 3
months,[129] USCIS must keep pace with the incoming volume (in other words,
complete approximately 55,000 Form I-765 renewal requests in automatic Start
Printed Page 26630 extension-eligible categories per month) in addition to
reducing the pending volume of renewal requests from 520,000 to
150,000-200,000.[130] USCIS determined that, as of May 4, 2022, the maximum
number of officer hours it can devote to Form I-765 renewal requests in the
automatic extension-eligible categories is 217,800 per year, based on its
resources and capacity. By comparison, USCIS devoted a total of approximately
432,500 officer hours to all Form I-765 adjudications in FY 2021.

USCIS calculated that, if it applied 217,800 officer hours at approximately 15
minutes per Form I-765 [131] per month, to keep pace with the incoming flow of
55,000 new renewal requests as well as to reduce the volume of pending requests
from 520,000 to 150,000-200,000, it would take USCIS 540 days—or approximately
18 months—to reach its goal of processing Form I-765 renewal applications within
3 months. Therefore, DHS has concluded that the temporary 360-day increase to
the automatic extension time period must be in place for 540 days for those with
pending renewal applications during this period.

Applicants who file a Form I-765 renewal application after this filing timeframe
and who are eligible for an automatic extension of their employment
authorization and/or EADs will receive the 180-day automatic extension period
currently provided at 8 CFR 274a.13(d)(1). DHS expects that, by the close of the
filing timeframe outlined in this temporary final rule, the usual 180-day
automatic extension period will be sufficient to prevent applicants filing Forms
I-765 renewal applications from incurring a lapse in employment authorization
and/or EAD validity, as USCIS expects to have returned to achieving its 3-month
processing goal by then.

This temporary final rule applies to three groups of applicants. First, the rule
applies to those renewal applicants eligible for the automatic extension who
already have filed their renewal Form I-765 application, which remains pending
as of the date this rule goes into effect, May 4, 2022, and whose EAD has not
expired or whose current up to 180-day auto-extension has not yet lapsed, since
this group is at immediate or near term risk of experiencing a gap in employment
authorization and/or documentation. Second, the rule applies to new renewal
applicants who file Form I-765 during the 18-month period following the rule's
publication to avoid a future gap in employment authorization and/or
documentation.[132] Third, for those renewal applicants who already are
experiencing a gap in employment authorization and/or EAD validity, fairness
dictates that such renewal applicants also should receive the benefit of the
increase in the automatic extension, to enable them to resume an additional
period of employment authorization and/or EAD validity, since they were the
first group to have been placed in a detrimental position on account of USCIS'
long processing times. For these applicants, this TFR provides that employment
authorization and/or validity of their EADs will resume beginning on the date
the rule is published in the Federal Register , May 4, 2022, and continue for a
period of up to 540 days from the date their employment authorization and/or EAD
expired, as shown on the face of the EAD. However, in recognition of Congress'
clear intent in the INA regarding unauthorized employment, including the
accountability of employers that employ noncitizens who are not authorized to
work in the United States,[133] this TFR does not address periods of
unauthorized employment.[134] In other words, this rule does not cure any
unauthorized employment that may have accrued prior to issuance of the
rule.[135]

In addition, DHS has determined that the temporary amendment made by this rule
should remain in the Code of Federal Regulations (CFR) for an amount of time
sufficient to cover the approximately 18-month period during which the up to
540-day automatic extension will be authorized, plus an additional 720 days so
that the regulatory provision remains in the CFR for the entire time that
applicants may be relying on this temporary increase to the regular automatic
extension period.[136] As such, this TFR will take effect on May 4, 2022, and
will be removed from the CFR on October 15, 2025; that is, approximately 3 1/2
years (or 1,260 days) after the rule takes effect, although no new beneficiaries
will receive a 540-day automatic extension after October 26, 2023. Further, as
is consistent with current guidance, applicants should file a renewal Form I-765
no earlier than 180 days prior to the expiration date of their EAD.

Start Printed Page 26631




IV. TEMPORARY REGULATORY CHANGE: 8 CFR 274A.13(D)(5)

DHS is amending 8 CFR 274a.13(d) to add a new paragraph (5) that will be in
effect temporarily until October 15, 2025.[137] Under the new paragraph, DHS is
increasing the automatic extension period for employment authorization and/or
EAD validity of up to 180 days (described in 8 CFR 274a.13(d)(1)) to a period of
up to 540 days for renewal applicants eligible to receive an automatic extension
who have a timely filed Form I-765 renewal application pending during the
18-month [138] period beginning May 4, 2022, and ending October 26, 2023. After
the 18-month period, automatic extensions of employment authorization and EAD
validity will revert to the up to 180-day period for those eligible applicants
who timely file renewal Form I-765 applications after October 26, 2023. The
increased automatic extension period will apply to eligible renewal applicants
who timely file their Forms I-765 on or before the last day of the 18-month
period, even if filed prior to May 4, 2022. In addition, for renewal applicants
whose Forms I-765 remain pending but who are no longer within the up to 180-day
automatic extension period on or before May 4, 2022, DHS has determined that, in
the interest of fairness, such renewal applicants automatically will resume
employment authorization and/or the validity of their EADs beginning on the
effective date of this TFR, May 4, 2022, and up to 540 days from the expiration
of their employment authorization and/or EAD.[139]

Similar to the 180-day automatic extension period provided by 8 CFR
274a.13(d)(1), the increased automatic extension period of up to 540 days
established by this TFR generally will automatically terminate the earlier of up
to 540 days after the expiration date of the EAD, or upon issuance of
notification of a denial on the Form I-765 renewal request even if this date is
after October 26, 2023.

Moreover, 8 CFR 274a.13(d)(5) will remain in the CFR for an additional 720 days
after this 540-day period, until October 15, 2025, to ensure that renewal
applicants who are already within their up to 540-day automatic extension period
as of October 26, 2023, will not get cut off from any remaining employment
authorization and/or EAD validity that is over 180 days (the normal automatic
extension period under 8 CFR 274a.13(d)(1) but instead will be able to take full
advantage of the 540-day period.

Similar to 8 CFR 274a.13(d)(4), this TFR provides that an EAD that appears on
its face to be expired is considered unexpired under this rule for up to 540
days from the expiration date on the front of the EAD when combined with a
Notice of Action (Form I-797C) indicating timely filing of the EAD renewal
application and the same employment eligibility category as stated on the
facially expired EAD (or in the case of an EAD and I-797C notice that each
contains either an A12 or C19 TPS category code, the category codes need not
match). While the current provision at 8 CFR 274a.13(d)(4), and, likewise, the
provision in this TFR, do not require that qualifying Notices of Action specify
the automatic extension period, in practice, USCIS issues a Form I-797C Notice
of Action to all renewal applicants with general information regarding who is
eligible for an automatic extension and currently includes an explanation of the
up to 180-day automatic extension period. On and after May 4, 2022, USCIS plans
to issue Form I-797C Notices of Action with an explanation of the up to 540-day
automatic extension period. USCIS does not plan to issue updated Form I-797C
notices to eligible applicants who filed their Form I-765 renewal application
before May 4, 2022. However, even Form I-797C notices that refer to a 180-day
automatic extension still meet the regulatory requirements. Start Printed Page
26632 Therefore, individuals who show Form I-797C notices that refer to a
180-day extension, along with their qualifying EADs, still receive the up to
540-day extension under this rule. USCIS will update the web page on the USCIS
website that is referenced in the current Form I-797C notice to reflect the
change in the automatic extension period. The public should refer to this web
page when determining whether a Form I-797C Notice of Action, if presented with
the expired EAD, is acceptable for Form I-9 or other purposes, such as to obtain
benefits. Employers should attach a copy of the web page with the employee's
Form I-9 to document the extension of employment authorization and/or EAD
validity. USCIS will also update I-9 Central on the USCIS website to provide
employees and employers with specific guidance on Form I-9 completion, including
any required notations indicating the above-described extension of employment
authorization and/or EAD validity, in such cases. If a benefit-granting agency
accepts EADs, then the agency should accept the EADs that are automatically
extended under this rule. The up to 540-day extension under this rule applies
even if a Form I-797C notice refers to a 180-day extension.

This rule does not modify the current requirements an employer must follow for
Form I-9 at 8 CFR 274a.2(b)(1)(vii) that apply to automatic extensions, except
that this rule temporarily replaces “180” with “540” in its reference to the
maximum number of days for the automatic extension period. Therefore, when an
employee chooses to use an EAD and Form I-797C receipt notice as provided under
this rule to complete Form I-9 for new employment, the employee and employer
should use the extended expiration date to complete Section 1 (if applicable)
and Section 2 of the Form I-9 and reverify no later than the date that the
automatic extension period expires.[140] For current employment, the employer
should update the previously completed Form I-9 to reflect the extended
expiration date based on the automatic EAD extension while the renewal is
pending and reverify no later than the date that the automatic extension
expires.[141] For renewal applicants with pending Forms I-765 who experienced a
lapse in employment authorization and/or EAD validity prior to the effective
date of this rule, May 4, 2022, yet resume a period of employment authorization
and/or EAD validity under this rule, and are rehired by the same employer, their
employers must complete Form I-9 by treating the individual's employment
authorization as having previously expired pursuant to 8 CFR 274a.2(c)(1)(ii)
but have a choice of either reverifying employment authorization on the
employee's Form I-9 or completing a new Form I-9.[142]

Under this Temporary Final Rule, just as under existing 8 CFR 274a.13(d)(3), DHS
will retain the ability to otherwise terminate any employment authorization or
EAD, or extension period for such employment authorization or document, by
written notice to the applicant, by notice to a class of noncitizens published
in the Federal Register , or as provided by statute or regulation, including 8
CFR 274a.14.[143]


V. REGULATORY REQUIREMENTS


A. ADMINISTRATIVE PROCEDURE ACT

DHS is issuing this rule without prior notice and an opportunity to comment and
with an immediate effective date pursuant to the Administrative Procedure Act's
(APA's) “good cause” exception. 5 U.S.C. 553(b)(B) and (d)(3). Agencies may
forgo notice-and-comment rulemaking and a delayed effective date when a
rulemaking is published in the Federal Register , because the APA provides an
exception from those requirements when an agency “for good cause finds . . .
that notice and public procedure thereon are impracticable, unnecessary, or
contrary to the public interest.” 5 U.S.C. 553(b)(B); see also 5 U.S.C.
553(d)(3). Additionally, on multiple occasions, agencies have relied on this
exception to promulgate both communicable disease-related [144] and
immigration-related [145] interim rules. The good cause exception for forgoing
notice-and-comment rulemaking “excuses notice and comment in emergency
situations, or where delay could result in serious harm.” Jifry v. FAA, 370 F.3d
1174, 1179 (D.C. Cir. 2004); Am. Fed. of Gov't Emps. v. Block, 655 F.2d 1153,
1156 (D.C. Cir. 1981) (“As the legislative history of the APA makes clear,
moreover, the exceptions at issue here are not `escape clauses' that may be
arbitrarily utilized at the agency's whim. Rather, use of these exceptions by
administrative agencies should be limited to emergency situations . . . .”).
Furthermore, notice and comment is impracticable under the APA, when an agency
finds that due and timely execution of its functions would be impeded by the
notice requirement under the APA, and for example, an investigation into the
facts shows that a new rule must be put in place immediately to avert some type
of emergency.[146] Courts have held that impracticability “is inevitably fact-
or context-dependent.” [147] Although the Start Printed Page 26633 good cause
exception is “narrowly construed and only reluctantly countenanced,” Tenn. Gas
Pipeline Co. v. FERC, 969 F.2d 1141 (D.C. Cir. 1992), DHS has invoked the
exception appropriately in this case given the totality of the circumstances in
which this TFR is implemented: [148] Providing advance notice and comment would
be impracticable because doing so would result in serious harm, for the reasons
set forth below.

As discussed earlier in this preamble, the untenable situation that applicants
and their employers are facing is the result of several converging factors
affecting USCIS operations that were compounded by the COVID-19 national health
emergency. USCIS faced an overall higher level of adjudicatory workload, coupled
with insufficient resources to complete the work, which resulted in the
significant increase in USCIS processing times for Form I-765 applications
(initials and renewals). Staffing shortfalls mean that the workforce cannot keep
pace with these operational strains at present, and staffing issues cannot
immediately be remedied.[149] While the agency had hoped to overcome the effects
of the factors adversely affecting processing times by using operational and
other measures, these measures did not produce effects as fast as the agency had
hoped, as some of the corrective measures are lengthy, time-consuming, and
ongoing. Unfortunately, USCIS' previous financial strains, including a
preliminarily enjoined 2020 Fee Rule, continuing workforce shortfalls due to a
previously threatened furlough, attrition, a hiring freeze, and an unusual spike
and sustained increase in filings at a rate above that which USCIS can match
continue to impact processing times for renewal Forms I-765.

USCIS has been diligently taking steps, many of which had generally been
effective in the past, to address these factors and improve adjudicative
efficiency after the surge in EAD renewal applications in March and April of
2021, while, at the same time also attending to emergent and other critical
demanding obligations of the agency. These steps included applying overtime
funds to the Form I-765 renewal workload in an attempt to control the growing
backlog, and exploring programmatic improvement initiatives for the adjudication
of Form I-765 applications overall. However, although these measures initially
showed some success, it has become apparent that USCIS' limited resources are
insufficient to address the immediate situation. With the incoming volumes of
Form I-765 renewal filings showing no sign of slowing, USCIS assesses that it
will not be able to avert the impending crisis of more renewal applicants
experiencing gaps in employment authorization and/or documentation, and that
such gaps' length in time are growing. As a result, USCIS has determined that
until processing times can be reduced significantly, an increase in the
automatic extension period is needed as soon as possible to avert imminent harm.
This rule is imperative to provide an interim measure for thousands of renewal
applicants who are facing imminent job loss through no fault of their own, and
thousands who have already experienced a lapse in employment authorization
and/or EAD validity despite USCIS' best efforts to employ operational measures
to avoid this result.

As explained throughout this preamble, and as of December 31, 2021, the impact
is significant. USCIS data show that approximately 66,000 renewal applications
remained unadjudicated beyond the automatic extension period of 180 days under 8
CFR 274a.13(d)(1). Therefore, the individuals who filed those renewal
applications and relied on the automatic extension to maintain employment
already would have experienced job loss as a result of the lack of employment
authorization and/or EAD validity. Of the approximately 66,000 renewal
applicants in this situation, 58 percent are asylum applicants, a particularly
vulnerable population. Continuous employment authorization during the pendency
of an asylum application is vital for asylum seekers in the United States, given
that they need employment authorization not just to work but also to access
services and other resources required to pursue their asylum applications before
USCIS or EOIR, which are often costly. Therefore, this entire group of renewal
applicants needs immediate help via this rulemaking so these applicants can
regain employment authorization and/or EAD validity and rejoin the workforce in
order to continue to make a living to sustain their families.

Given that renewal applications continue to be filed—USCIS receives about 55,000
new renewal Forms I-765 in automatic extension-eligible categories per month—the
backlog is expected to increase and, with it, the number of renewal applicants
who could lose their ability to be employed and to support themselves and their
families.[150] DHS estimates that approximately 14,500 renewal applicants per
month will join the group of approximately 66,000 renewal applications who faced
a lapse in employment authorization and/or EAD validity as of December
2021.[151] Furthermore, data estimates show that an estimated 266,841 to 375,545
renewal applicants could lose their employment authorization and/or EAD validity
over the next 18 months if this rule is not promulgated immediately.

Considering the total population potentially impacted by this rule, DHS
estimates that, with the implementation of this rule, approximately $3,098
million in labor earnings for renewal applicants would be stabilized and not
forgone.[152] In other words, this rule will preserve an estimated total of
$3,098.0 million in labor earnings for the estimated 266,841 to 375,545 affected
renewal applicants. Any delay in action such as by providing notice and comment,
therefore, would raise the imminent threat and create severe adverse
consequences to labor earnings Start Printed Page 26634 and the financial
well-being of applicants and their families. DHS believes that with the
immediate implementation of this rulemaking, the potential for additional gaps
in employment authorization and/or EAD validity, job loss, and financial
uncertainty will be reduced significantly for Form I-765 renewal applicants and
their families while USCIS works toward implementing its backlog reduction plan
to return processing times to the pre-emergency 3-month average.

DHS believes that the imminent and continuing impact on employers' business
continuity and related effects caused by gaps in employment authorization and/or
EAD validity additionally justify that DHS issue this temporary final rule. The
imminent or ongoing gaps in employment authorization and/or EAD validity being
experienced by renewal applicants through no fault of their own adversely affect
not only applicants and their families, but also employers, which experienced
difficulties in maintaining their workforce as a result of the pandemic, and
continue to face a variety of challenges as the United States progresses on its
path to recovery from the pandemic, such as more job openings than available
workers.[153] To ensure continuity of operations, businesses and entities may
have made decisions in reliance on the possibility that eligible renewal Form
I-765 applicants may receive renewals of employment authorization and
documentation (for example, by establishing business contracts, applying for
grants, signing leases, and commencing development of product lines). As DHS
predicts that it will take approximately 18 months to return to normal
processing levels, DHS seeks to mitigate the potential that additional
businesses and entities may temporarily be adversely impacted by required
terminations as a result of gaps in employment authorization or documentation.

Such adverse impacts on employers and businesses, who have already experienced
significant economic harm on account of the pandemic, gives cause to address an
emergency situation as quickly as possible to prevent further imminent harm to
an increased number of renewal applicants and their employers. While the number
of businesses affected is unknown, DHS's analysis suggests that, if this rule
were not implemented immediately, businesses that employ affected EAD holders
would incur approximately $4,037.6 million in labor turnover costs for the
separation and replacement these employees.[154] This amount represents
significant cost savings to businesses under this rule. The longer this rule is
delayed, the greater the costs to business because of applicants' gaps in
employment authorization and/or documentation and the resulting disruptions in
business continuity that employers will experience, defeating the very purpose 8
CFR 274a.13(d) and this rulemaking, creating 8 CFR 274a.13(d)(5), seek to
prevent.[155] That is, because of the serious harm that would be caused to
applicants and employers described throughout this rulemaking, providing notice
and comment, as well as a 60-day effective date delay,[156] would expose the
public to the harm that 8 CFR 274a.13(d) and this rulemaking are trying to
prevent, and would thereby defeat the very purpose of rulemaking.

Furthermore, DHS believes that given the imminent and continuing impact of gaps
in employment authorization and/or EAD validity on renewal applicants, their
families, employers, and employers' business continuity make following ordinary
notice and timing impracticable. As a DHS component agency, one of USCIS'
primary missions is to administer immigration benefits, including adjudicating
requests for and issuing employment authorization and/or EADs.[157] Under the
INA, the Secretary is authorized to take necessary regulatory action to carry
out this mission effectively. As established above, the current situation is
untenable for renewal applicants and their employers. Given the current
processing backlogs and delays, USCIS also predicts that it will take
approximately 18 months to revert to normal processing timeframes, a significant
portion of which would be taken up by notice and comment rulemaking and the
60-day publication requirement. Thus, given the immediate harm that these
backlogs create for renewal applicants and employers alike, the notice and
comment requirement, and associated time requirements, would not allow USCIS to
timely avert the harms discussed in this rule. Providing notice and comment
rulemaking and complying with the 60-day publication requirement is therefore
simply impracticable as it would impede USCIS functions, and has a significant
impact on applicants and employers.

Additionally, DHS believes that issuing this temporary rule is a reasonable
approach to implement this temporary measure, which will be effective for only a
finite period. Specifically, the up to 360-day increase of the current 180-day
automatic extension period via the amendments to DHS regulations made by this
rule are limited to individuals who are seeking a Form I-765 renewal application
within the next 18 months from the rule's publication, while the amendments to
DHS regulations will only remain in place for a total of 1,260 days ( i.e., 3
1/2 years). These time periods are suitable to avert imminent harm to a specific
class of individuals and their employers.[158] As demonstrated in the Start
Printed Page 26635 preamble, extending the automatic extension provision
temporarily by up to an additional 360 days for a period of 540 days ( i.e.,
approximately 18 months) directly corresponds to USCIS' data-driven estimates on
how long USCIS will need to reduce the processing times of backlogged Form I-765
renewal applications. In addition, DHS has determined that the rule will need to
remain in the Code of Federal Regulations for another 720 days so that eligible
prior renewal applicants can take advantage of the full up to 360-day increase
if necessary, even after the 18-month window for the increase closes.[159] After
this period, the amendments made by this rule will expire automatically.
Therefore, this rulemaking is limited in time and scope in order to prevent harm
to the public.

Bypassing the ordinary APA procedures will allow USCIS immediately to reduce the
dire impact the current circumstances create for affected noncitizens and their
employers—circumstances that were and continue to be beyond the control of
renewal applicants and their U.S. employers. As described above and throughout
this preamble, while USCIS has been taking active measures to reduce the backlog
and return to its processing goal of an average of 3 months as soon as
possible,[160] backlogs and processing times grew to such an extent due to the
COVID-19 pandemic's impacts on agency operations and finances, in combination
with other factors such as filing surges, staffing shortages, and a sustained
increase in the number of filings in other benefit request types such as
adjustment of status and asylum that impact EAD receipts, that those measures
were insufficient to avoid the current circumstances.

USCIS expects that its backlog reduction efforts will allow the agency to return
to its 90-day processing goal before this TFR expires. In the meantime, this TFR
will mitigate harm to individuals, families, and businesses while USCIS works to
rebound from the adverse impacts of COVID-19, staffing shortages, and financial
strains. A subsequent, extraordinary surge and sustained increase in Form I-765
submissions further undermined those efforts such that the only practicable
solution to avoid placing thousands of renewal applicants in the untenable
situation of losing employment authorization and/or EAD validity and
experiencing employment termination is this time-limited and narrowly drawn
rule. Data show that if this rule is implemented without notice and comment, DHS
will have mitigated gaps in employment authorizations for virtually all the
affected population.[161]

This temporary measure is consistent with the intent of current 8 CFR
274a.13(d). In this rule, DHS is simply temporarily increasing the 180-day
timeframe for those already eligible for an automatic extension. DHS neither
makes additional categories eligible nor alters existing procedures through this
TFR. Therefore, the increase in the automatic extension of employment
authorization and/or EAD is not just highly effective but also limited in scope
and application. For this additional reason, DHS believes that the good cause
exception is properly invoked in this rulemaking.

In sum, for the reasons stated, including the need to be responsive to the
operational demands and challenges facing USCIS to reduce its processing times,
renewal applicants' needs to avoid gaps in employment and/or documentation, and
employers' need to maintain their workforce, DHS believes that, based on the
totality of the circumstances in which this TFR is issued, it has good cause to
bypass ordinary notice-and-comment procedure for this temporary action, and that
moving expeditiously to make this change effective immediately upon publication
is in the best interest of the public.

DHS has concluded that the good cause exceptions in 5 U.S.C. 553(b)(B) and
(d)(3) apply to this TFR. Delaying implementation of this rule until the
conclusion of notice-and-comment procedures of section 553(b) and the delayed
effective date provided by section 553(d)(3) would be impracticable due to the
need to prevent renewal applicants, otherwise eligible for the up to 180-day
automatic extension, from experiencing the immediate harm caused by gaps in
employment authorization and/or documentation, which would in turn cause
imminent harm to their U.S. employers and their ability to maintain their
workforce, while USCIS works to reduce adjudicatory processing times and
otherwise address the Form I-765 backlogs through various measures.


B. EXECUTIVE ORDER 12866 (REGULATORY PLANNING AND REVIEW) AND EXECUTIVE ORDER
13563 (IMPROVING REGULATION AND REGULATORY REVIEW)

Executive Order (E.O.) 12866 and E.O. 13563 direct agencies to assess the costs
and benefits of available regulatory alternatives and to the extent permitted by
law, to proceed if the benefits justify the costs. They also direct agencies to
select regulatory approaches that maximize net benefits (including potential
economic, environmental, public health and safety effects, distributive impacts,
and equity). In particular, E.O. 13563 emphasizes the importance of quantifying
both costs and benefits, of reducing costs, of harmonizing rules, and of
promoting flexibility. The Office of Information and Regulatory Affairs (OIRA),
within the Office of Management and Budget (OMB), has designated this final rule
a significant regulatory action that is economically significant under section
3(f)(1) of E.O. 12866. Accordingly, OIRA has reviewed this regulation.

1. INTRODUCTION

As fully detailed in the preamble, this TFR temporarily amends existing DHS
regulations to provide that the automatic extension period applicable to
expiring employment authorization and/or Employment Authorization Documents
(Forms I-766 or “EADs”) for certain renewal applicants who have filed Form
I-765, Application for Employment Authorization, will be increased from up to
180 days to up to 540 days for a period of 540 days ( i.e., approximately 18
months). For those renewal applicants whose 180-day automatic extension of
employment authorization and/or EADs (hereinafter may be referred to
collectively as “EADs” for ease of reference) have expired by the date this rule
goes into effect, this rule provides for an additional period of employment
Start Printed Page 26636 authorization and EAD validity, beginning on the date
the rule goes into effect and up to 540 days from the date their EADs expired as
shown on the face of the card. The purpose of this TFR is to reduce the
likelihood that certain eligible applicants who qualify for automatic extensions
of their expiring EADs will experience gaps in employment authorization and/or
EAD validity, and therefore allow earnings stability for individuals and
continuity of business operations for their employers.

DHS determines that the population impacted by this TFR consists of three
components applicable to the pool of applicants who have renewal Form I-765
applications pending. The first component consists of the pool whose EADs and
180-day auto-extensions have lapsed, and renewal Form I-765 applications still
have not been approved as of December 31, 2021—we refer to this group as the
“current” population segment. The second component consists of the pool for whom
coverage by the current 180-day auto-extension has prevented the lapse of their
EADs to date but who would experience a lapse due to expiration of their 180-day
auto-extensions in the 120-day period between the date of the analysis and the
TFR taking effect.[162] This second group is referred to as “near-term,” in
context. The third group consists of the “future” population that, without this
rule, could experience a lapse in employment during the 18-month period in which
the TFR is effective. Because we cannot forecast the future population with
precision, we present a range. The baseline population comprising the current,
near-term, and future components could range from 301,463 to 423,863. After
applying several adjustments described in the “Background and Population”
section, we arrive at an adjusted population that could range from 266,841 to
375,545.

Our analysis suggests that virtually all eligible applicants with pending Form
I-765 renewal applications who are otherwise eligible for the automatic
extension would be covered by the TFR, though we cannot rule out the possibility
that some automatically extended EADs might still lapse, as our analysis reveals
that over recent months a miniscule share had lapsed for more than 540 days. We
expect that the monetized estimates will be beneficial to individuals, and that
they will also generate beneficial cost-savings to businesses.

DHS has prepared quantified estimates of the impacts that could be generated by
this TFR applicable to the adjusted population. This rule will prevent EAD
holders from incurring a loss of earnings (“stabilized earnings”), as under this
rule there will be no disruption to their earnings due to a lapsed EAD.
Additionally, this rule will generate labor turnover cost savings to businesses
that employ the EAD holders, as under this rule there will be no disruption to
EAD holders' employment authorization. However, we are unable to ascertain how
many individual businesses could be impacted. Additionally, to the extent this
rule prevents affected EAD holders' jobs from going unfilled, there will be less
impacts to tax transfers from businesses and employees to the Federal
Government.

Due to substantial variation in the inputs utilized to estimate the impacts,
there is a very wide range in which they could fluctuate. These impacts are
summarized in Table 7, where the monetized figures represent the forecast
expected value (which is the mean of trial-based simulations) discounted at 7
percent rate of discount for a range based on simulations that account for
variations in the components of the impacts. The figures represent the total
cost over two years.

Expand Table

Table 7—Summary of Impacts

[FY 2020 Values]

Module A.EAD Holder Earnings Preserved (“Stabilized Earnings”):• Entities
directly affected: Individual EAD holders.• Population: 266,841 to 375,545
individuals with EAD renewals.• Monetized present value estimate (7 percent):
$3,098.0 million.• Type: Stabilized labor income to affected EAD renewal
applications; this labor income is a proxy for either prevented transfers from
EAD holders to others in the workforce or cost savings to employers for
preserved productivity, depending on if employers would have been able to easily
find replacement labor for affected EAD holders without this rule.• Summary:
Individuals would benefit from being able to maintain their employment without
disruption; DHS estimated these savings based on data from recently lapsed EADs
and labor earnings, both of which vary within a range.• Potential preserved
employment taxes = $326.9 million (Present Value, 7 percent discount rate);
actual amount will depend on how easily businesses would have been able to find
replacement labor for affected EAD holders without this rule.Module B.Employer
Labor Turnover Cost Savings:• Entities directly affected: businesses that employ
the EAD holders.• Population: Unknown number of businesses; impacts based on
265,987 to 374,343 individuals with EAD renewals.• Monetized present value
estimate (7 percent): $4,037.6 million.• Type: Cost-savings.• Summary: There
would be cost savings to employers in terms of continuity of business operations
due to the worker not being separated; DHS estimated these savings based on
information applicable to turnover costs relevant to the annual earnings, both
of which vary within a range.Module C.Other Impacts Considered:• Individuals
impacted would likely benefit from cost-savings accruing to not having to incur
the direct costs associated with searching for and obtaining a new job once
their renewal EAD that lapsed is eventually approved.• The estimates of
stabilized earnings understate the true impact because they do not factor in the
time it would take affected EAD holders to find employment beyond when the
lapsed EAD is finally renewed.• To the extent that individuals' earnings will be
maintained, burdens to their support network would be prevented.• DHS does not
expect labor market impacts from this TFR, as the total maximum population that
could be impacted is a very small share of the national labor force.• Avoid
opportunity costs to businesses for having to choose the next best alternative
to employment of the affected EAD renewal applicant. We do not know if the
replacement hire in a next best alternative scenario would have been a
comparable substitute (i.e., a productivity or profit charge to employers).

Start Printed Page 26637

Some of the impacts of this rule will depend on whether businesses would have
been able to find replacement labor for the positions the affected EAD renewal
applicants would have lost if they had experienced a gap in employment without
this rule. If businesses would have been able to find replacement labor from the
pool of the unemployed, the only monetized cost savings of the rule to society
is for preventing costs resulting from labor turnover. If businesses would not
have been able to find replacement labor, the monetized cost savings of the rule
would also include prevented lost productivity due to a lack of available labor.
However, the impacts of this rule to the affected EAD renewal applicants do not
depend on whether their employer can find replacement labor. This rule will
prevent affected EAD renewal applicants from incurring a loss of earnings.

DHS estimates that stabilized earnings to EAD renewal applicants ranges from
$81.3 million to $6,388.6 million with a primary estimate of $1,713.5 million
(annualized, 7 percent), depending on the wages the EAD renewal applicants earn,
the number of EAD renewal applicants affected, and the duration of the gap in
employment authorization that would occur without this rule. DHS uses estimates
of the stabilized earnings as a measure of either 1) prevented transfers of
these wages from the affected population to others in the labor market, or 2) a
proxy for businesses' cost savings from prevented lost productivity, depending
on whether businesses would have been able to find replacement labor for
affected EAD renewal applicants without this rule.

DHS does not know what the next best labor alternative would have been for
businesses without this rule. Accordingly, DHS does not know the portion of the
overall effects of this rule that are transfers or costs savings. To begin, DHS
describes the two extreme scenarios, which provide the bounds for the range of
effects.

Scenario 1: If, in the absence of this rule, all businesses would have been able
to easily find reasonable labor substitutes for the positions the EAD renewal
applicants would have lost, businesses would have lost little or no
productivity. Accordingly, this rule prevents $1,713.5 million (primary estimate
annualized, 7 percent) from being transferred from affected EAD renewal
applicants to workers currently in the labor force (whom are not presently
employed full time) or induced back into the labor force and this rule would
result in $0 cost savings to businesses for prevented productivity losses.

Scenario 2: Conversely, if all businesses would have been unable to immediately
find reasonable labor substitutes for the position the EAD holder filled, then
businesses would have lost productivity. Accordingly, $1,713.5 million is the
estimated monetized cost savings from this rule for prevented productivity
losses and this rule will result in preventing $0 from being transferred from
affected EAD renewal applicants to replacement labor. Because under this
scenario businesses would not have been able to find replacement labor, the rule
may also result in additional cost savings to employers for prevented profit
losses; and further, may also prevent a reduction in tax transfer payments from
businesses and employees to the government. DHS has not estimated all potential
tax effects but notes that stabilized earnings of $1,713.5 million would have
resulted in employment tax losses to the Federal Government ( i.e., Medicare and
Social Security) of $180.8 million (annualized, 7 percent).

In both scenarios, whether without this rule employers would have been able to
find replacement labor or not, DHS assumes that businesses would have incurred
labor turnover costs for having to replace affected EAD renewal applicants.
Accordingly, DHS estimates the rule will also result in additional labor
turnover cost savings to businesses ranging from $232.2 million to $6,666.8
million, with a primary estimate of $2,233.1 million (annualized, 7 percent)
depending on the wages the EAD renewal applicants earn, the number of EAD
renewal applicants affected, and the replacement cost to employers.

Table 8 below summarizes these two scenarios and the primary estimate of this
rule (Tables 8A and 8B capture the impacts at 3 and 7 percent rates of discount,
respectively). Because DHS does not know the overall proportion of businesses
that would have been able to easily find replacement labor in the absence of
this rule, for DHS's primary estimate we assume that replacement labor would
have been found for half of all EAD renewal applicants and not found for the
other half ( i.e., an average of the two extreme scenarios described above).
However, as noted previously, December 2021 unemployment and job openings data
indicate there are more jobs available than people looking for jobs.[163]
Accordingly, we believe the impacts of this rule will most likely skew towards
Scenario 2, with the rule resulting in mostly cost savings for employers who
would have been unable to fill the jobs of affected EAD renewal applicants
without this rule.

Expand Table

Table 8A—Primary Estimate—Monetized Annualized Impacts at 3%

[Millions]

CategoryDescriptionScenario 1: Replacement labor found for ALL affected EAD
holdersScenario 2: No replacement labor found for affected EAD holdersPrimary
estimate: Replacement labor found for HALF of affected EAD
holdersTransfersStabilized EarningsPrevented compensation transfers from EAD
renewal applicants to other workers$1,693.0$0$846.5Employment TaxesPrevented
reduction in employment taxes paid to the Federal Government0178.689.3Start
Printed Page 26638Cost SavingsLabor TurnoverPrevented labor turnover costs to
businesses2,206.52,206.52,206.5ProductivityPrevented lost productivity to
businesses (stabilized earnings used as a proxy)01,693.0846.5Total Cost
Savings2,206.53,899.53,053.0

Expand Table

Table 8B—Primary Estimate—Monetized Annualized Impacts at 7%

[Millions]

CategoryDescriptionScenario 1: Replacement labor found for ALL affected EAD
holdersScenario 2: No replacement labor found for affected EAD holdersPrimary
estimate: Replacement labor found for HALF of affected EAD
holdersTransfersStabilized EarningsPrevented compensation transfers from EAD
renewal applicants to other workers$1,713.5$0$856.7Employment TaxesPrevented
reduction in employment taxes paid to the Federal Government0180.890.4Cost
SavingsLabor TurnoverPrevented labor turnover costs to
businesses2,233.12,233.12,233.1ProductivityPrevented lost productivity to
businesses (stabilized earnings used as a proxy)01,713.5856.7Total Cost
Savings2,233.13,946.63,089.9

There are two important caveats to the monetized estimates. First, as the
pending caseload evolves over the course of time that this TFR applies to, the
pending count and therefore the total number of EADs and individuals associated
with them will change. A resultant effect of the caseload changes is that as
USCIS works through this backlog, the number of affected EAD renewal applicants
and the durations for which EAD renewal applicants may have experienced a lapse
in employment without this rule will likely vary from the durations modeled,
which was those experienced in December 2021. As a result, DHS acknowledges the
uncertainty in the above monetized impacts.

Second, DHS recognizes that non-work time performed in the absence of employment
authorization has a positive value, which is not accounted for in the above
monetized estimates.[164] For example, if someone performs childcare, housework,
home improvement, or other productive or non-work activities that do not require
employment authorization, that time still has value. In assessing the burden of
regulations to unemployed populations, DHS routinely assumes the time of
unemployed individuals has some value.[165] The monetized estimates of the wages
this rule preserves are measured relative to a baseline in which individuals
lose EADs and the associated income as a result of the problem this rule seeks
to address. The monetary value of the wages this rule preserves are savings to
the individual, but DHS has considered whether net societal savings may be lower
than the sum of the preserved wages to the individuals and whether a more
accurate estimate of the net impact to society from losing employment
authorization in the absence of this rule might take into account the value of
individuals' non-work time, even though this population has lost their
authorization to sell their time as labor. Due to the variety of values placed
on non-work time, and the additional fact that this non-work time is
involuntary, it is difficult to estimate the appropriate adjustment that DHS
should make to preserved wages in order to account for the social value of
non-work time. Accordingly, DHS recognizes that the net societal savings of this
rule may be somewhat lower than those reported below, but they are a reasonable
estimate of the impacts to avoiding the costs of lapsed EADs.

Start Printed Page 26639

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

Expand Table

Table 9—OMB A-4 Accounting Statement

[$ millions, 2020]

[Period of analysis: 2022-2023]

CategoryPrimary estimateMinimum estimateMaximum estimateSource citation (RIA,
preamble, etc.)Benefits:Monetized Benefits7% 3%N/A N/AN/A N/AN/A
N/ARIA.Annualized quantified, but un-monetized,
benefitsN/AN/AN/ARIA.Unquantified BenefitsWithout this rule, affected EAD
renewal applicants who remain eligible for employment authorization would
encounter delays in EAD renewals and be unauthorized to work for periods of
time. This rule will ensure that these EAD renewal applicants do not experience
gaps in employment authorization as a result of USCIS processing delays and can
continue to make a living to sustain their families. Accordingly, stabilized
earnings for these EAD renewal applicants may also prevent any monetary or other
support that would have been necessary from the support network of affected EAD
holders during such a period of unemployment. It will also ensure other benefits
of holding an EAD or job will continue, such as valid identity documents, or
health insurance obtained through an employer. Additionally, this rule will
prevent adverse impacts on businesses that would result from required
terminations for affected EAD renewal applicants.RIA.Costs:Annualized monetized
costs7% 3%−$3,089.9 −3,053.0−$232.2 −229.4−$13,055.4 −13,131.0RIA.Annualized
quantified, but un-monetized, costsN/AN/AN/ARIA.Qualitative (unquantified)
costsIn cases where, in the absence of this rule, companies cannot find
reasonable substitutes for the labor the affected EAD renewal applicants have
provided, affected businesses would also save profits from the productivity that
would have been lost. In all cases, companies would avoid opportunity costs from
having to choose the next best alternative to employment of the affected EAD
renewal applicant.RIA.Transfers:Annualized monetized transfers: “on budget”7%
3%0 00 00 0RIA.From whom to whom?N/AN/AAnnualized monetized transfers:
stabilized earnings7% 3%856.7 846.50 06,388.6 6,312.4RIA.From whom to whom?This
rule will prevent compensation from transferring from affected EAD renewal
applicants to other workers.RIA.Annualized monetized transfers: taxes7% 3%90.4
89.30 0674.1 666.1RIA.From whom to whom?This rule will prevent a reduction in
employment taxes from companies and employees to the Federal Government
(quantified). It would also prevent the transfer of additional Federal, State,
and local income tax revenue (unquantified).RIA.CategoryEffectsSource citation
(RIA, preamble, etc.)Effects on State, local, and/or tribal governmentsThis rule
will prevent a reduction in State and local tax revenue (unquantified). It will
also prevent potential reliance on State or local government-funded support
services that may have been necessary with a gap in employment authorization
(unquantified).RIA.Effects on small businessesThis rule does not directly
regulate small entities but has indirect cost-saving to small entities that may
employ affected EAD renewal applicants. Such businesses will avoid the costs for
labor turnover and loss of productivity and profits had they not been able to
immediately fill the labor performed by the affected EAD renewal applicant.RIA,
RFA.Start Printed Page 26640Effects on wagesPreserve access to wages for EAD
renewal applicants.RIA.Effects on growthNone.RIA.

2. BACKGROUND AND POPULATION

Backlogs across USCIS-administered benefit requests, including employment
authorization, have been increasing steadily since FY 2010, due to factors
discussed in the preamble. Unforeseen obstacles driven by the COVID-19 pandemic
that exacerbated existing financial problems within USCIS, staffing issues, and
a surge in FY 2021 EAD filings, have aggravated the situation and caused a
recent spike in USCIS processing times. This is especially concerning where the
backlog involves employment authorization and documentation, which is critical
to applicants' livelihoods and the financial well-being of their families, as
well as U.S. employers' continuity of operations. USCIS understands the
potential impact that delays in receiving final decisions have on applicants and
tackling the backlog and reducing processing times is a priority for DHS.

Currently, applicants in specific categories who are seeking to renew their
expiring EADs are eligible for an automatic extension of that employment
authorization and/or EAD for up to 180 days if they meet certain requirements.
Because of the recent spike in processing times, however, DHS has determined
that 180 days is no longer sufficient to prevent gaps in employment
authorization and documentation for most eligible applicants. Therefore, DHS
will provide an additional 360 days of employment authorization to the existing
180 days (for a total of up to 540 days from the EAD expiration date),
automatically provided to certain applicants seeking a renewal of their EADs
under 8 CFR 274a.13(d)(1).

In developing the populations examined for this analysis, it is useful to
discuss four categories. First, there are applicants whose auto-extended EADs
under the relevant categories have lapsed and whose renewal Forms I-765 have
since been approved, providing them with a new grant of employment authorization
and/or new documentation. Second, there are applicants whose auto-extended EADs
have lapsed but renewal Forms I-765 have not yet been approved as of the date of
the most recent data applicable to this analysis (December 31, 2021). Third,
there are applicants whose EADs are still valid, including being within the
180-day auto-extension period, but whose auto-extension period will expire over
the next 120 days, in the timespan leading up to the TFR taking effect (the
near-term period captures the date of the analysis, which is January 1, 2022,
through mid-April 2022). Fourth are the applicants whose EAD would lapse after
the TFR becomes effective if it were not for the TFR. These population
components will be considered “past,” “current,” “near-term,” and “future.”

In this specific case, we think it is most appropriate to attribute the impacts
to the population that is current in terms of being impacted, or that could be
impacted in the near-term timespan leading up to the TFR, and the future, when
the TFR is in effect. Hence, while we draw on data and information from the pool
of applicants whose auto-extended EADs lapsed but whose renewal Forms I-765
applications were subsequently approved, they are not part of the population
affected by the rule.

DHS analyzed pending renewal Form I-765 filing and processing information and
determined that the current pool of relevant-category Form I-765 renewals that
have expired and are pending in a lapse-state of the current analysis stands at
66,077. Furthermore, the near-term population (120-day period starting on
January 1, 2022) is 96,786. For the future population, USCIS estimates with
about 30,000 additional EADs per month are at risk of lapse without additional
adjudication efforts. For the future, we also relied on certain projections
about USCIS's efforts to reduce backlogs to make initial estimates. If current
adjudication trends hold steady, about 14,500 EADs (10,500 per month for the
C08, 3,000 per month C09, and 1,000 for the rest automatic extension-eligible
categories) per month would lapse for the duration of the rule's effective
timeframe. Over 18 months, that would be 261,000 new applicants who would lose
at least one day of employment authorization without this rule. If, however, we
assume a linear decrease in processing times such that by the end of the 18
months they were back to more reasonable levels, then about 138,600 individuals
would lose employment authorization during the 18-month time frame (500 per
month C08, 300 per month C09, and 100 per month for all others at the end of the
period) without this rule. Hence, as depicted in Table 10, a range for the
future population would be 138,600 to 261,000.

Expand Table

Table 10—TFR Future Population Projections

Approx. daysMonthAdditional EADs facing lapse each month without additional
efforts to reduce lapsesFuture low boundFuture upper boundUSCIS efforts to
reduce lapses, outside of this rule: linear improvement of 800 each monthSum of
lapsed EADsUSCIS efforts to reduce lapses, outside of this rule: no improvement
over 18 monthsSum of lapsed
EADs (A)(B)(A−B)(C)(A−C)30130,00015,50014,50015,50014,50060230,00016,30013,70015,50014,500Start
Printed Page
2664190330,00017,10012,90015,50014,500120430,00017,90012,10015,50014,500150530,00018,70011,30015,50014,500180630,00019,50010,50015,50014,500210730,00020,3009,70015,50014,500240830,00021,1008,90015,50014,500270930,00021,9008,10015,50014,5003001030,00022,7007,30015,50014,5003301130,00023,5006,50015,50014,5003601230,00024,3005,70015,50014,5003901330,00025,1004,90015,50014,5004201430,00025,9004,10015,50014,5004501530,00026,7003,30015,50014,5004801630,00027,5002,50015,50014,5005101730,00028,3001,70015,50014,5005401830,00029,10090015,50014,500Cumulative
Total138,600261,000Note: A linear reduction in the monthly shortfall of 14,500,
over 18 months is 805.6, rounded to 800 in these projections for simplicity.

We stress that these estimates were not made via a formal modelling or time
series analysis approach, as variables could affect the population over time via
changes in volumes, processing times, and other factors that are not possible to
predict. As such, DHS acknowledges the uncertainties in these estimates, but
they represent the potential population for the impact estimates using the best
available information at the time of this analysis.

We thus define the broad population baseline (denoted generally as “ PB ”) as
the sum of the three components, which, given the range for the future, would
lie between 301,463 and 423,863.[166] We next proceed to make a few adjustments
to PB . First, for the current population, we parsed out late filers (who are
not eligible for the 180-day automatic extension) and some applications that may
have lapsed for other reasons not exclusive to the context of the TFR to obtain
a narrower population of 65,000.[167]

An assumption that is implicit in the populations developed below is that every
individual with a lapsed EAD would be unauthorized to work. In reality, some of
the individuals may be authorized to work—or become authorized to work—incident
to status and merely relying upon the EAD to evidence that employment
authorization. Others may be relying upon the EAD as a government-issued
identity document and not using it to obtain employment. In either instance,
USCIS does not know, and is unable to reasonably estimate, how many individuals
or what percentages of the populations may be separately employment authorized
or otherwise not relying on the EAD to document their employment authorization.
It is possible, therefore, that the lower bound estimate of population is
overstated.

All the impacts that we estimate quantitatively rely on labor earnings by the
relevant individuals with EADs. The assessments of possible impacts rely on the
assumption that everyone who was approved for an EAD under the relevant
categories entered the labor force. DHS believes this assumption is justifiable
because applicants would generally not have expended the direct filing (for the
pertinent EAD categories in which there is a filing fee) and time-related
opportunity costs associated with applying for an EAD if they did not expect to
recoup an economic benefit. Realistically, however, individuals might not be
employed for any number of other reasons not specifically relevant to this
action. The national unemployment rate (“ UR ”) as of November 2021, is 4.2
percent.[168] There is constant and considerable job turnover in the labor
market even when the unemployment rate is low. Individuals could be unemployed
due to this normal turnover or from any number of case-specific factors and
conditions. As such, we believe it is reasonable to scale the population to
account for unemployment. In addition, not all Form I-765 renewal applications
are approved. DHS calculated the applicable Form I-765 renewal approval rate (“
RA ”) for FY 2020 through 2021 filings, which was 92.7 percent.[169] To obtain
the adjusted population (“ PA ”) we use the formula: PB × ( 1−UR) × ( RA), which
yields a population that could range from 266,841 to 375,545. These population
data and associated shares of the totals are presented in Table 11.

Start Printed Page 26642
Expand Table

Table 11—Estimated TFR Population

Module A. baselineLow boundUpper boundComponentNumberShare (percent)NumberShare
(percent)i. Current66,07721.966,07715.6ii. Near-term96,78632.196,78622.8iii.
Future138,60046.0261,00061.6Total301,863100.0423,863100.0Module B. adjustedLow
boundUpper boundComponentNumberShare (percent)NumberShare (percent)i.
Current57,79521.757,79515.4ii. Near term85,95632.285,95622.9iii.
Future123,09146.1231,79461.7Total266,841100.0375,545100.0Source: USCIS analysis
of EAD renewal filing data, provided by DHS, USCIS Office of Performance and
Quality (OPQ); data provided 1-1-2022. Estimate for the future population
provided by OPQ on 2-3-2022.

The adjusted population captures the population that will incur impacts
applicable to both labor earnings for individuals and labor turnover costs to
employers. While some information on employment is available through E-Verify
(discussed below) we cannot determine how many individual employers would be
impacted. The high population bound would represent the maximum number of
businesses impacted under a scenario in which each business hired one and only
one individual from the population.

There is an important caveat to the adjusted populations upon which DHS will
base our estimated impacts. Over time, the backlog and pending pool will evolve
according to multiple factors. While we have attempted to account for future
changes in the backlog based on the information we have available to us at this
time, it is possible that other factors may change that we have been unable to
capture such as future surges in renewal applications. Therefore, DHS
acknowledges the uncertainty in the above estimated ranges of affected
populations and that the number of individuals impacted over the course of time
may differ from our adjusted population.

3. IMPACT ANALYSIS

This section is organized into modules as follows: In Module A, DHS develops
earnings levels for the EAD renewal filers.

Module B focuses on labor earnings impacts and is divided into two sections.
First, the analytical procedures and results applicable to durations for
auto-extended EADs that lapsed but where renewal Form I-765 applications were
since approved are detailed; as described in the preceding section, this portion
is not part of the adjusted population affected by this rule, but metrics and
data derived from it are vital to the subsequent estimation procedures. Second,
the requisite impact simulations for the impacted populations are calibrated,
run, and the results presented.

Module C addresses labor turnover cost savings from the rule. Module D collates
the monetized impacts and reports the discounted terms, since the TFR will
stretch past one year. Module E discusses the impacts from an economic and
business perspective, and Module F concludes with consideration of other
possible effects.

Since we are dealing with multiple variables, we use abbreviations where
possible, as in the above discussion of the population.

MODULE A. EARNINGS OF EAD RENEWAL APPLICANTS

We expect two broad types of impacts from this TFR that are estimated and
quantified. First, there will be impacts to eligible individual EAD holders in
terms of their ability to maintain labor earnings. Second, impacts will accrue
to businesses that employ the EAD holders in maintaining continuity of
employment and thus avoiding labor turnover costs. A central component of both
impacts is the earnings of the EAD renewal filers, which figure prominently into
the monetized estimates. An important factor in the estimation procedure
requires establishing a range bounded by a lower and upper level.

The Federal minimum wage is $7.25 per hour; however, in this rulemaking, we rely
on the national “effective minimum wage” of $11.80 for the forthcoming
estimation procedures, which considers the diverse lower wage bounds practiced
across U.S. States.[170]

Because the individuals renewing EADs would be relatively new entrants to the
labor force, we would not expect most of them to earn high wages. However, it is
likely that some earn wages above the minimum. Because the EADs impacted do not
include or require, at the initial or renewal stage, any data regarding wages,
DHS has no information from the associated forms concerning earnings,
occupations, industries, positions, or businesses that may employ such workers.
DHS can add some robustness to the estimates by incorporating actual data
concerning the employment of the EAD holders to draw inference on their
earnings.

DHS obtained FY 2020 E-Verify (“EV”) records for the EAD categories potentially
impacted, which yielded 4.71 million records.[171] These records neither
distinguish between an EV case for an initial EAD, a renewal EAD, or the EV case
result, but they do provide information that we can draw from regarding
employment. The data record the North American Industry Classification System
(NAICS) code, Start Printed Page 26643 which is utilized by Federal statistical
agencies in classifying business establishments. The EV data does not provide
information on job type or occupation, but it does substantiate the NAICS code
pursuant to the 3-digit “subsector” level (with a few exceptions).

Analysis of the EV records shows that they disproportionately accrued to a small
subset of subsectors. Of one hundred represented subsectors, only four exhibited
shares higher than 10 percent—Professional, Scientific, & Technical Services
(22.7 percent), Other Information Services (13.3 percent), Administrative and
Support Services (13.0 percent), and internet Service Providers, Web Search
Portals, and Data Processing Services (11.6 percent). Moreover, the upper
quartile is reached with just eleven subsectors. The average individual share
across these eleven subsectors was 6.9 percent, while for the entire remainder
the individual average was 0.3 percent. Given this concentration, we will center
the analysis on these eleven subsectors.

We rescaled the shares of the subsectors according to the total number of
records for these eleven subsectors (3.55 million) and obtained the average
hourly wage for all occupations within the relevant NAICS codes from BLS. We
then calculated a weighting factor input, which is the product of the wage and
the rescaled share, and then summed across all rows to obtain a weighted average
of $36.78.[172] We applied this figure as the upper earnings bound, noting that
it is more than one-third (35.9 percent) higher than the current national
average wage weighted across all occupations, of $27.07.[173]

MODULE B. IMPACTS THAT COULD ACCRUE TO LABOR EARNINGS

1. DURATION ANALYSIS FOR PREVIOUSLY LAPSED EAD RENEWALS

To estimate the impacts that could accrue to labor earnings, DHS extracted a
filing sample size and adjudication records on 31,676 auto-extended EADs for the
relevant categories which had lapsed and where the renewal Form I-765
applications were subsequently approved from June-December 31, 2021. This time
frame was chosen to draw recent data in context of the problem set being
addressed. For each record, we calculated the duration in calendar days (“ DL ”)
applicable to the end of the initial EAD validity date and the eventual approval
of the renewal Form I-765 application in cases where the auto-extended EAD had
lapsed. The analysis of the lapse-data shows that the durations are not normally
distributed and in fact display a strong positive skew; this is because the
majority of the pending EADs are resolved within the first 50 days after
lapsing. Less than 10 percent of the pending EADs take more than 115 days to be
approved. Please see Table 12 below for a breakout of the number of days the
EADs have lapsed.

We utilized the Oracle Crystal Ball® Modelling and Simulation Software (“OCB”)
to analyze the data. OCB indicates that the Gamma density function provides the
best fit.[174] The Gamma distribution is a member of the exponential
distributions and is applicable in situations where the data displays
considerable variance, is restricted to positive values, and is skewed to the
right (positively skewed). It is frequently utilized in analyses to predict
durations and wait times until future events occur. Overall, the range of the
lapse-durations is very high. However, values of more than 360 days have a very
small probability, 0.32 percent, of being realized.

To illustrate the feature of the lapse-durations, we provide the associated
probability plot in the Appendix (Figure A.2). The value bars are overlayed with
the gamma curve, which visually displays a very good fit. In addition, we can
see that as the values get to about 180 or so, they asymptotically converge to
zero. We have also marked the plot with the mode (the most frequently observed
value, of 7), the median, (40.0), and the mean (52.5). The larger mean compared
to the median confirms the positive skew, as it is generally indicative that
unusually high individual values tend to pull the mean above the median, the
latter of which is not significantly impacted by the skew. Figure A.2 is trimmed
to 540 days, and shows a marker for 360 days, as the latter is the maximum lapse
duration this rule can prevent as it provides a temporary increase of 360 days
beyond the existing 180-day auto-extension period (for a total automatic
extension period of 540 days). The value of 360 is at the 99.8th percentile. At
this level, there is still almost a zero probability of a lapse in an EAD
occurring with this rule's temporary increase to the auto-extension period. The
percentiles presented in Table 12 represent the fitted values under the Gamma
density curve for DL up to 360 days.

Expand Table

Table 12—Percentiles for the Number of Calendar Days Between When Auto-Extended
EADs Expired and Renewal Forms I-765 Were Subsequently Approved in Recent Months

[“Lapse Duration” in calendar days]

PercentileGamma distribution (calendar
days)01107201330194028504060537069808890114100358+Source: USCIS analysis of EAD
data; provided by DHS, USCIS, OPQ, Claims 3 database; obtained on 12-17-2021.
Analysis conducted with OCB and SAS VIYA PME.

As the percentiles increase, the durations increase at a consistent rate;
however, the upper percentile exhibits a significant jump. This data therefore
corresponds to the probability graph in showing that once the 90th percentile is
reached, the lapse-durations begin to diverge from the distribution to that
point and gravitate to almost zero.

2. SIMULATION AND IMPACT ESTIMATION

The adjusted population (“ PA ”) of 266,841 to 375,545 individuals could incur
impacts that would result in stabilized earnings, as there would be no
disruption to their earnings under the TFR. For the estimation procedure we
account for worker benefits by calculating a benefits-to-wage multiplier using
the most recent BLS information detailing the average employer costs for
employee compensation for all civilian workers in major occupational groups and
industries. DHS relies on a benefits-to-wage multiplier (“ BM ”) of 1.45 and,
therefore estimates the full opportunity cost per applicant, including employee
Start Printed Page 26644 wages and salaries and the full cost of benefits such
as paid leave, insurance, retirement, and other benefits.[175] The total rate of
compensation for the effective minimum hourly wage is $17.11 ($11.80 × benefits
burden of 1.45), which is 62.8 percent higher than the basic Federal minimum
wage of $7.25. Burdened for benefits, the weighted average hourly wage (derived
from the EV analysis) is $53.33 ($36.78 × benefits burden of 1.45). An hourly
benefits-burdened earnings bound of $17.11-$53.33 provides a range that we think
is realistic to estimate the impacts for this TFR.

DHS is interested in estimating the mean and a range for the impacts that is
likely to be realized. Since the population, earnings, and lapse-durations all
vary within a range, and noting especially high variance of the latter, we
employ via OCB a simulation approach. For the earnings and population, we rely
on the uniform distribution. This is a discreet distribution which essentially
means that any value in the range has the same probability as being selected as
any other value. This structure is chosen because we have no evidence or data to
suggest that the earnings or population would tend to cluster at either the low
or high end of the range. The minimum and maximum level are pursuant to the
relative figures in preceding paragraph.

The Gamma distribution is generally continuous in the upper tail. However,
because the software is utilized extensively for scenario-specific and risk
management simulations, we can calibrate the forthcoming simulation to exclude
choosing values above a certain level, which we tune to the value of 360, as
that is the maximum day-lapse duration this rule can prevent.

In addition, we introduce a time scalar (“ TS ”) to account for a typical 8-hour
workday and 5-day workweek; the product of 8 × ( 5/7 ) is 5.714.[176] Denoting
hourly earnings (“ EH ”), under the “define forecast” toolkit we entered the
program: PA × EH × BM × Ts × DL and tuned the Gamma distribution for the
produced parameters.[177] The tuning features for the system are listed in Table
13, which includes the three-parameters OCB produced for the distribution:

Expand Table

Table 13—Calibration for Stabilized Earnings Estimation

 MinimumMaximumDistributionPopulation ( P A )266,841375,545Uniform.Fully-loaded
Earnings ( E H × B M )$17.33$53.33Uniform.Durations ( D L )1360Gamma: Location:
.0017. Scale: 44.57. Shape: 1.16.Source: USCIS Analysis.

OCB repeatedly calculates results using a different set of random values from
the range of values and probability distributions described in Table 13 above to
build a model of possible results. We ran 100,000 randomized seed trials, which
is sufficient to generate a 95 percent level of precision in the results. Based
on the simulation, the expected value (which is the mean of probabilistic-based
forecast values) for stabilized earnings is $3,354.3 million.[178] We also
generated a 95 percent certainty range, which reports $159.2 million to
$12,506.4 million, noting that the extreme range is due to the high variation in
the inputs.[179] A sensitivity analysis that scores the inputs in terms of how
much variation in each contributes to fluctuation in the forecasted values
reveals that the vast majority, 90.7 percent, of the variation was driven by
variation in the lapse duration-days.

If, without this rule, businesses would not have been able to find replacement
labor for the position the affected EAD renewal applicant filled, then the
unperformed labor would have resulted in a reduction in taxes from employers and
employees to governments. Accordingly, the stabilized earnings derived from this
rule, and estimated above, will prevent such a reduction in taxes. It is
challenging to quantify Federal and State income tax impacts of employment in
the labor market scenario because individual and household tax situations vary
widely as do the various State income tax rates.[180] But DHS is able to
estimate the potential contributory effects on employment taxes, namely Medicare
and Social Security, which have a combined tax rate of 7.65 percent (6.2 percent
and 1.45 percent, respectively).[181] With both the employee and employer paying
their respective portion of Medicare and Social Security taxes, the total
estimated level of tax transfer payments from employees and employers to
Medicare and Social Security is 15.3 percent.

We estimate the tax impacts on the unburdened earnings basis. Denoting Start
Printed Page 26645 the tax impact “ TI ” and stabilized earnings “ ES,” for the
three values reported the tax impact is derived as: ( TI × ES)/ BM .[182] If,
without this rule, all employers would have been unable to find replacement
labor for the position the EAD renewal applicant filled, this rule will prevent
a reduction in employment taxes from employers and employees to the Federal
Government of $353.9 million, but could range from $16.8 million to $1,319.5
million. The actual value of tax impacts will depend on the number of affected
EAD holders that businesses would have been able to easily find reasonable labor
substitutes for in the absence of this rule.

MODULE C. LABOR TURNOVER COST IMPACTS

This TFR is expected to generate a labor turnover cost savings to employers of
affected EAD holders. DHS bases the assessment of these costs on the assumption
that every EAD applicable to the adjusted population that would have lapsed
without this rule would have generated an involuntary separation from an
employer, and that the separation is due to no other factors. While DHS cannot
estimate how many actual employers would be impacted because DHS does not have
employer information for all affected EAD holders, DHS can make an informed
estimate of the aggregate scope of the impact, embodied in a cost-savings to the
employers.[183]

Employment separations can generate substantial labor turnover costs to
employers that can be divided into several components. First are the direct or
“hard” costs that involve separation and replacement costs. The separation costs
include exit interviews, severance pay, and costs of temporarily covering the
employee's duties and functions with other employees, which may require overtime
or temporary staffing. The replacement costs typically include expenses of
advertising positions, search and agency fees, screening applicants, interviews,
background verification, employment testing, hiring bonuses, and possible travel
and relocation costs. Once hired, employers face additional training,
orientation, and assessment costs.

Second, direct costs involve loss of productivity and possibly profitability due
to operational and production disruptions, which can include errors from other
employees that may temporally fill the position. Some analysts have identified a
third cost segment, which is a type of indirect cost, which encompasses loss of
institutional knowledge, networking, and impacts to work-culture, morale, and
interpersonal relationships. This last type of cost is almost impossible to
measure quantitatively.[184]

There are numerous studies and reports concerning labor turnover costs (“LTC”)
available from Human Resource entities which are cited across correspondent
literature. Some focus on specific occupations, industries, salary levels, and
often measure LTC in slightly different ways. LTC is generally reported as a
share (percentage, “ LC ”) of the annual earnings (“ EA ”) or an actual cost per
employee for which a percentage can be calculated. Many reports cite a 2012
report published by the Center for American Progress (CAP) that surveyed more
than 30 studies that considered both direct ( e.g., separation and replacement)
and indirect ( e.g., loss of institutional knowledge) costs. In Module B above,
DHS captures preserved productivity savings had employers not been able to
immediately find replacement labor for EAD renewal applicants without this rule.
DHS requests comment on how, or if, that measure of productivity may overlap
with the types of productivity covered in the CAP report captured here, such as
from the substitutability of replacement labor.

The CAP and other reports that we reviewed confirm three central aspects of LTC:
(i) That they vary substantially across industries and jobs; (ii) that they tend
to grow (in absolute and percentage terms) according to skill level and
earnings; and (iii) that they are higher for salaried workers compared to
hourly-wage earners.[185] The reporting notes that specialized technical jobs
and highly paid jobs in line with senior or executive levels, which involve high
levels of education, credentials, and stringent hiring criteria, can generate
disproportionately high LTC that can reach more than 100 percent of the
salary—compared to jobs with low educational and technical requirements.[186]
However, the CAP survey found that costs tend to range within a bound of 10
percent to around 40 percent of the salary. For example, CAP found despite wide
variation and range, for workers earning $50,000 or less, and for workers
earning $75,000 or less, which, at the time of the study in 2012 corresponded
to, the 75th and 90th percentiles of typical earnings, LTC ranged typically from
10 to 30 percent of the salary, clustering at about 21 percent. More recent
reports indicate that the typical cost is about one-third of the salary.[187]

DHS could nest the information above into an estimation procedure, but it would
be beneficial to examine granular data to hone the estimates for two reasons.
First, it would be valuable to quantify the correlation between annual earnings
and labor turnover costs and incorporate it in the forecast procedure. Second,
it is desirable to obtain a distribution for the data—an average and median
could be gathered from the referenced reporting, but there would be a gap in
terms of other metrics needed to calibrate a certain distribution. DHS examined
a 2020 report by the Washington Center for Equitable Growth, which updated the
earlier CAP study results to provide information on about thirty studies on
LTC.[188] We selected data points that captured both the annual earnings salary
(which the study benchmarked to 2019 levels) and turnover costs. We then culled
the data applicable to salary levels more than the maximum in our earnings
bound. At 2,080 annual work hours, the unburdened weighted average EA is $76,502
(the higher earnings levels also corresponded generally to very high LTC that
are outside what we think is Start Printed Page 26646 the reasonable
range).[189] We note that we are assuming that the individuals are employed full
time, as 2,080 annual work hours corresponds to a five-day work week and 8-hour
work-day. We welcome public input on this assumption. Twenty-seven resulting
data points were employed for the analysis.[190] While this may be relatively
few observations, OCB nevertheless was able to fit a Beta density function to
the data, and we are confident in relying on the results. Foremost, the mean of
24.3 percent and the median of 19.8 percent are very similar to the information
reported in the studies referenced above and fall within a substantial range,
from 4.1 percent to 68.7 percent. Second, on qualitative grounds the Beta
distribution is well-suited as a setup. The Beta distribution is also a family
member of the exponential distributions and closely resembles the gamma
function. It is utilized in situations where there is substantial variance and
is discrete at the lower end minimum, further restricted to positive values.
First, negative values can be ruled out in context—there cannot be zero cost to
an employee separation—and thus a lower tail cutoff to bound to the cost
percentage is appropriate. Second, we can reasonably conjecture that the costs
would tend to cluster near the lower tail of the distribution (as outlined in
the CAP report), which is amenable to the positive skew of the distribution,
reinforced by the data resultant mean being larger than the median.[191]
Additionally, the scatterplot (see Appendix, Table A.3) with the fitted least
squares line clearly reveals that LC is an increasing function of the earnings,
with a correlation coefficient of 0.661. The Ordinary Least Squares regression
indicates that a $1,000 increase in annual earnings leads to a .63 percentage
point increase in labor turnover costs ( LC).

DHS notes that the studies utilized to develop the turnover cost percentage
range are based on diverse studies across a range of industries and that they
that measure these costs different ways. DHS welcomes public input concerning
the range we rely on as well as the way in which turnover costs are tabulated in
terms of direct and indirect costs, including productivity effects.

Based on an average of 2,080 annual work hours, the unburdened effective minimum
$11.80 hourly wage maps to annual earnings (EA) of $24,544. We have made an
additional adjustment regarding the population. This rule will provide EAD
renewal applicants with stabilized earnings for an additional 360 days and will
prevent turnover costs for employers of applicants whose EADs will be
adjudicated within the 360-day timeframe of the rule. However, for the 0.32
percent of the population whose EAD renewal application could still be pending
after 360 days, this rule will delay the turnover costs, not prevent them.
Accordingly, we have scaled the population to exclude 0.32 percent of the
population whose EAD could still lapse. DHS also recognizes that a certain
number of individuals may have been terminated or chosen to leave irrespective
of this rule and, accordingly, this rule won't prevent such turnover. DHS does
not have data on the number of EAD renewal applicants that would have been
terminated from or left their jobs had they not lost employment authorization.
DHS requests comment on data that could be used to make such an adjustment.

We calibrated the Beta distribution for the four parameters produced and under
the “define forecast” function, entered the program: PA × EA × LC with
correlation tuned to 0.661.[192] Nesting the correlation essentially means that
if a randomly chosen earnings value is high, there is a higher probability that
a high turnover cost percentage will be selected as well and vice versa for
lower cost percentages. The tuning features for the system are listed in Table
14, which includes the four parameters for the distribution.

Expand Table

Table 14—Calibration for Turnover Cost Estimation

 MinimumMaximumDistributionPopulation ( P A )265,987374,343Uniform.Earnings
(annual, E A )$24,544.076,502.4Uniform.Turnover cost % ( L C
)4.1%68.7%Beta: 193 Minimum: .031. Maximum: .987. Alpha: 1.214. Beta:
4.27.Correlation: Turnover Cost % and Earnings.661Source: USCIS Analysis.

 

We ran 100,000 randomized seed trials, which is sufficient to generate a 95
percent level of precision in the results and tuned the simulation to cutoff
trials with an LC greater than the maximum in our sample, of 68.7 percent. Based
on the simulation, the expected value is $4,371.6 million, and the 95 percent
precision bound results in a range of forecasts from $454.5.0 million to $
13,509.3 million.[194]

MODULE D. MONETIZED IMPACTS FOR THE TFR

In Table 15 we collate the undiscounted monetized impacts derived from the above
sections. Start Printed Page 26647

Expand Table

Table 15—Summary of Monetized Impact Estimates Applicable to Labor Earnings and
Labor Turnover

[Undiscounted, in millions]

 Labor earningsTax impacts *MinMeanMaxMinMeanMaxStabilized
earnings$159.2$3,354.3$12,506.4$16.8$353.9$1,319.6Labor
turnover454.54,371.613,509.30.00.00.0Total613.77,725.926,015.716.8353.91,319.6* If,
without this rule, businesses could not find replacement labor for any of the
affected EAD holders, the tax impacts shown represent the loss in employment
taxes this rule would prevent. The actual amount will depend on how easily
businesses would have been able to find replacement labor in the absence of this
rule.

Because the TFR will apply to more than one full fiscal year, we also apply a
discounting framework to the impacts. Since there is a one-to-one mapping from
the population to the impacts, we can derive the yearly allocations directly
from the population figures. The approach, encapsulated in Table 16 in step-by
step fashion, builds off the population data in Tables 10 and 11. By grouping
the current and near-term populations into year one, and then calculating the
portion of the future population attributable to year one, we can logically
calculate the year two allocation.

Expand Table

Table 16—Worksheet for Impact Allocation Across Two Years

Population segmentLow populationHigh populationA. Current57,79557,795B.
Near-term85,95685,956C. Year 1 initial (A+B)143,751143,751D.
Future123,091231,794E. Total TFR months1818F. Future by month (D/E)6,83812,877G.
Year 1 months1212H. Year 2 months (E−G)66I. Year 1 addition (G*F)82,060154,529J.
Year 1 total (C+I)225,811298,280K. Year 2 (H*F)41,03077,265L. Total (check:
J+K)266,841375,545M. Year 1 allocation (J/L)84.6%79.4%N. Year 2 allocation
(K/L)15.4%20.6%O. Average share: year 182.0%P. Average share: year 218.0%

As can be gathered from rows M and N, the allocations are different according to
the high and low population. However, the impact estimates already have
incorporated the population variation, meaning that we need to rely on a single
percentage for the share allocations. Since the shares are close across the
population bounds, we average them and apply the resulting figures, of 82.0
percent and 18.0 percent, in order (Rows O and P).

Table 17 provides the allocated impacts according to the allocation derived
above, incorporating sub-tables A-C, to account for the average, and low and
high ends of the certainty bound in order. Each sub-table is organized into
three additional sections, to account for undiscounted terms, and those at 3
percent rate of discount, and a 7 percent rate of discount, in order. We parsed
out the stabilized earnings and labor turnover impacts separately, as they will
embody different types of impacts.

Expand Table

Table 17—Monetized Expected Value Impacts for the TFR

[Millions]

UndiscountedStabilized earningsLabor turnoverTotalTaxes *A. Average (Expected
Value)Year 1$2,751.4$3,585.8$6,337.2$290.3Year
2602.9785.81,388.763.6Total3,354.34,371.67,725.9353.9

Start Printed Page 26648
Expand Table

Table 17—Monetized Expected Value Impacts for the TFR—Continued

[Millions]

3% DiscountStabilized earningsLabor turnoverTotalTaxesYear
1$2,671.2$3,481.4$6,152.6$281.9Year
2568.3740.71,309.060.0Total3,239.64,222.17,461.6341.8Annualized1,693.02,206.53,899.5178.647%
DiscountStabilized earningsLabor turnoverTotalTaxesYear
1$2,571.4$3,351.2$5,922.6$271.3Year
2526.6686.31,213.055.6Total3,098.04,037.67,135.6326.9Annualized1,713.52,233.13,946.6180.8B.
Low end of certainty rangeUndiscountedStabilized earningsLabor
turnoverTotalTaxes *Year 1$130.6$372.8$503.4$13.8Year
228.681.7110.33.0Total159.2454.5613.716.8Average79.6227.3306.98.43%
DiscountStabilized earningsLabor turnoverTotalTaxesYear
1$126.8$361.9$488.7$13.4Year
227.077.0104.02.8Total153.8439.0592.716.2Annualized80.35229.4309.88.57%
DiscountStabilized earningsLabor turnoverTotalTaxesYear
1$122.0$348.4$470.5$12.9Year
225.071.496.42.6Total147.0419.8566.815.5Annualized81.3232.2313.58.6C. High End
of Certainty RangeUndiscountedStabilized earningsLabor turnoverTotalTaxes *Year
1$10,258.4$11,081.0$21,339.3$1,082.4Year
22,248.02,428.34,676.4237.2Total12,506.413,509.326,015.71,319.6Average6,253.26,754.713,007.9659.83%
DiscountStabilized earningsLabor turnoverTotalTaxesYear
1$9,959.6$10,758.2$20,717.8$1,050.9Year
22,119.02,288.94,407.9223.6Total12,078.613,047.225,125.71,274.5Annualized6,312.396,818.613,131.0666.1

Start Printed Page 26649
Expand Table

Table 17—Monetized Expected Value Impacts for the TFR—Continued

[Millions]

7% DiscountStabilized earningsLabor turnoverTotalTaxesYear
1$9,587.2$10,054.4$19,943.3$1,011.6Year
21,963.51,999.24,084.5207.2Total11,550.812,053.724,027.81,218.8Annualized6,388.66,666.813,289.6674.1* If,
without this rule, businesses could not find replacement labor for any of the
affected EAD holders, the tax impacts shown represent the loss in employment
taxes this rule would prevent. The actual amount will depend on how easily
businesses would have been able to find replacement labor in the absence of this
rule.

For the discounted figures, the annualized amounts are the average annual
equivalence basis. Since the inputs are different for each year, the annualized
terms differ across discount rates.

MODULE E. ECONOMIC AND BUSINESS IMPACTS

As explained previously, DHS does not know what the next best alternative would
have been for businesses without this rule. Accordingly, DHS does not know the
proportion of the stabilized labor earnings estimates developed above that would
represent cost savings to businesses for prevented lost productivity or are
prevented transfer payments from affected EAD holders to replacement labor.[195]
These effects are very difficult to quantify and could be influenced by multiple
factors, but we will address the possibilities at a conceptual level.

In the cases where, in the absence of this rule, businesses would have been able
to easily find reasonable labor substitutes for the EAD renewal applicants, then
the impact of this rule is preventing a distributional impact where the earnings
of affected EAD holders would be transferred to others, who might fill in for
(and presumably replace) the EAD renewal applicants during their earnings lapse.
The portion of the total estimate of stabilized income that would represent this
prevented transfer payment will depend on the ability of businesses to have
found replacement labor in the absence of this rule.

In the cases where, in the absence of this rule, businesses would not have been
able to easily find reasonable labor substitutes for the EAD renewal applicants,
then the impact of this rule is preventing an associated loss of productivity
for employers. Therefore, the portion of the total estimate of stabilized income
that would represent cost savings to employers for prevented productivity losses
will depend on the ability of businesses to have found replacement labor in the
absence of this rule. In this case, the rule may also result in additional cost
savings to employers for prevented profit losses and having to choose the next
best alternative to the EAD holder.

DHS does not know what this next-best alternative may be for those companies.
However, if the replacement candidate would have been substitutable for the
affected EAD renewal applicant to a high degree, the labor performed by the new
candidate would not have resulted in changes to profits or productivity.
Accordingly, if the replacement labor is highly substitutable, we wouldn't
expect this rule to result in cost savings for productivity loss as a result of
employing the next available alternative for labor. If, however, the replacement
labor is a poor substitute and would have decreased productivity, then this rule
will preserve that lost productivity.

The above discussion involves two important points: If employers replaced
individuals who faced a lapse in their EAD after the automatic extension with
others in the labor force, then once the EAD was eventually reauthorized the EAD
holder would need to conduct a new search for a new job. They would thus incur
direct costs associated with seeking new employment. In addition, it can take
time to establish new employment. According to the Bureau of Labor Statistics,
in November 2021 the average duration of unemployment was 28.9 weeks (about 7
months) and the median duration was 12.7 weeks (about 3 months).[196] This has
varied historically, according to factors such as the overall strength of the
economy, employment conditions in specific industries, individual search effort,
and geographical considerations.[197]

Based on this average search time, in cases where affected EAD renewal
applicants would not be able to immediately return to their previous jobs once
their EAD is approved, the duration of lapsed earnings this TFR is addressing is
likely higher than that we have relied on from the analysis of the data. As a
result, search costs and the potential for earnings to continue to lapse even
when the individuals affected are able to return to work probably makes our
estimated impacts of the amount in stabilized earnings to affected EAD holders
smaller than the actual impacts. However, we do not have a method to allocate
the job search time to a portion that could be conducted while the EAD was in
lapse mode and a portion that would need to be held off until the Form I-765
renewal application was approved and a new EAD issued. Therefore, it would be
speculative to try to incorporate these additional factors into a cohesive model
and thus we have not quantified them.

MODULE F. OTHER IMPACTS

DHS does not expect material impacts to the U.S. labor market from this TFR.
According to the most recent data (applicable to November 2021), the U.S. labor
force stands at 162,052,000.[198] The maximum population impacted by the TFR is
375,545, which is only 0.23 percent of the national labor force.

Without this rule, EAD holders who remain eligible for employment authorization
would encounter delays Start Printed Page 26650 in EAD renewals and either be
unauthorized to work for periods of time, or lack documentation reflecting their
employment authorization. This rule is not making additional categories eligible
for employment authorization; it simply temporarily increases the 180-day
timeframe for those already eligible for an automatic extension. It will ensure
that these EAD holders do not experience gaps in employment as a result of USCIS
processing delays. Accordingly, stabilized earnings for these EAD holders may
also relieve the support network of the applicants for any monetary or other
support that would have been necessary during such a period of unemployment.
This network could include public and private entities, and it may comprise
family and personal friends, legal services providers and advisors, religious
and charity organizations, State and local public institutions, educational
providers, and non-governmental organizations. DHS believes these impacts would
accrue as benefits to the noncitizen EAD holders and their families.

Finally, we have already noted that the goal of this TFR is to prevent EADs from
lapsing, and that the 540-day benchmark would cover almost every case. For the
small portion that lapsed for more than 540 days, we have already noted that
these would embody extreme outliers and may be skewed by data errors.
Nevertheless, for purposes of transparency we provide Table 18, which shows the
share of EADs that would lapse under several alternatives to the 360-day
extension to the existing 180-day benchmark.

Expand Table

Table 18—Percentage of EADs That Would Lapse Under Alternative Extension-Day
Scenarios

The number of extension days added to the existing 180Share that would lapse
(percent)3057.76035.39019.01208.411801.443600.32540+0.10

It is important to note that our analysis was based on data from June through
December of 2021. If processing times and resultant backlogs are higher now,
than lapse-durations would potentially also be higher, and the shares affected
may be larger than those shown in Table 16.


C. REGULATORY FLEXIBILITY ACT

The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), as amended by the
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), requires an
agency to prepare and make available to the public a regulatory flexibility
analysis that describes the effect of the rule on small entities ( i.e., small
businesses, small organizations, and small governmental jurisdictions). The
RFA's regulatory flexibility analysis requirements apply only to those rules for
which an agency is required to publish a general notice of proposed rulemaking
pursuant to 5 U.S.C. 553(b) or any other law. See 5 U.S.C. 604(a). As discussed
previously, USCIS did not issue a notice of proposed rulemaking for this action.
Therefore, a regulatory flexibility analysis is not required for this rule.


D. SMALL BUSINESS REGULATORY ENFORCEMENT FAIRNESS ACT OF 1996 (CONGRESSIONAL
REVIEW ACT)

The Congressional Review Act (CRA) was included as part of SBREFA by section 804
of SBREFA, Public Law 104-121, 110 Stat. 847, 868, et seq. OIRA has determined
that this TFR is a major rule as defined by the CRA because it will result in a
major increase in costs or prices.[199] DHS has complied with the CRA's
reporting requirements and has sent this rule to Congress and to the Comptroller
General as required by 5 U.S.C. 801(a)(1). As stated in section IV.A of this
preamble, DHS has found that there is good cause to conclude that notice, the
opportunity for advanced public participation, and a delay in the effective date
are impracticable and contrary to the public interest. Accordingly, this rule is
effective immediately upon publication.[200]


E. UNFUNDED MANDATES REFORM ACT OF 1995

The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among other things,
to curb the practice of imposing unfunded Federal mandates on State, local, and
Tribal governments. Title II of UMRA requires each Federal agency to prepare a
written statement assessing the effects of any Federal mandate in a proposed
rule, or final rule for which the agency published a proposed rule, that
includes any Federal mandate that may result in a $100 million or more
expenditure (adjusted annually for inflation) in any one year by State, local,
and Tribal governments, in the aggregate, or by the private sector.[201] This
rule is exempt from the written statement requirement, because DHS did not
publish a notice of proposed rulemaking for this rule.

In addition, this rule does not contain a Federal mandate as the term is defined
under UMRA.[202] The requirements of title II of UMRA, therefore, do not apply,
and DHS has not prepared a statement under UMRA.


F. EXECUTIVE ORDER 13132 (FEDERALISM)

This rule does not have substantial direct effects on the States, on the
relationship between the National Government and the States, or on the
distribution of power and responsibilities among the various levels of
government. Therefore, in accordance with section 6 of E.O. 13132, 64 FR 43255
(Aug. 4, 1999), this rule does not have sufficient federalism implications to
warrant the preparation of a federalism summary impact statement.


G. EXECUTIVE ORDER 12988 (CIVIL JUSTICE REFORM)

This rule was drafted and reviewed in accordance with E.O. 12988, Civil Justice
Reform. This rule was written to provide a clear legal standard for affected
conduct and was reviewed carefully to eliminate drafting errors and ambiguities,
so as to minimize litigation and undue burden on the Federal court system. DHS
has determined that this rule meets the applicable standards provided in section
3 of E.O. 12988.


H. NATIONAL ENVIRONMENTAL POLICY ACT

DHS Directive 023-01 Rev. 01 and Instruction Manual 023-01-001-01 Rev. 01
(Instruction Manual) [203] establish the policies and procedures that DHS and
its components use to comply with the National Environmental Policy Act (NEPA)
and the Council on Environmental Quality (CEQ) regulations for implementing
NEPA.[204]

The CEQ regulations allow Federal agencies to establish, with CEQ review and
concurrence, categories of actions (“categorical exclusions”) that experience
has shown do not have a significant effect on the human environment and,
therefore, do not Start Printed Page 26651 require an environmental assessment
or environmental impact statement.[205]

The Instruction Manual establishes categorical exclusions that DHS has found to
have no such effect.[206] Under DHS NEPA implementing procedures, for an action
to be categorically excluded it must satisfy each of the following three
conditions: (1) The entire action clearly fits within one or more of the
categorical exclusions; (2) the action is not a piece of a larger action; and
(3) no extraordinary circumstances exist that create the potential for a
significant environmental effect.[207]

This rule amends 8 CFR 274a.13(d) to temporarily increase the period of time
that the employment authorization and/or EADs of certain eligible Form I-765
renewal applicants are automatically extended while their renewal applications
remain pending with USCIS. More specifically, this rule provides that the
automatic extension period applicable to expiring EADs for certain renewal
applicants who have filed Form I-765 will be increased from up to 180 days to up
to 540 days.

Amending the current rule to increase the automatic extension period for
employment authorization and/or EADs' validity from 180 days to 540 days will
not result in any meaningful, calculable change in environmental effect with
respect to the number of individuals affected by current EAD renewal
requirements. Furthermore, this rule's amendment will not alter immigration
eligibility criteria or result in an increase in the number of individuals who
will be eligible for employment authorization and/or EADs. Therefore, DHS has
determined that the temporary amendment to 8 CFR 274a.13 clearly fits within
Categorical Exclusion A3(d) contained in the Instruction Manual because it
amends a regulation without changing its environmental effect. Furthermore, DHS
has determined that this rule fits within Categorical Exclusion A3(a) contained
in the Instruction Manual because DHS considers temporarily increasing the
automatic extension period for employment authorizations and/or EADs for certain
renewal applicants to be an action of a strictly administrative or procedural
nature.

The temporary amendment to 8 CFR 274a.13 is a standalone action to increase an
automatic extension period. It is not part of a larger action. This amendment
will not result in any major Federal action that will significantly impact the
human environment. Furthermore, USCIS has determined that no extraordinary
circumstances exist that would create the potential for significant
environmental effects. Therefore, this rule amendment is categorically excluded
from further NEPA review.


I. FAMILY ASSESSMENT

DHS has reviewed this rule in line with the requirements of section 654 of the
Treasury and General Government Appropriations Act, 1999,[208] enacted as part
of the Omnibus Consolidated and Emergency Supplemental Appropriations Act,
1999.[209] DHS has systematically reviewed the criteria specified in section
654(c)(1), by evaluating whether this regulatory action: (1) Impacts the
stability or safety of the family, particularly in terms of marital commitment;
(2) impacts the authority of parents in the education, nurture, and supervision
of their children; (3) helps the family perform its functions; (4) affects
disposable income or poverty of families and children; (5) only financially
impacts families, if at all, to the extent such impacts are justified; (6) may
be carried out by State or local government or by the family; or (7) establishes
a policy concerning the relationship between the behavior and personal
responsibility of youth and the norms of society. If the agency determines a
regulation may negatively affect family well-being, then the agency must provide
an adequate rationale for its implementation.

DHS has determined that the implementation of this regulation will not
negatively affect family well-being and will not have any impact on the autonomy
or integrity of the family as an institution.


J. PAPERWORK REDUCTION ACT

This rule does not propose new, or revisions to existing, “collection[s] of
information” as that term is defined under the Paperwork Reduction Act of 1995,
Public Law 104-13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR
part 1320. As this is a TFR that only will increase the duration of an automatic
extension of employment authorization and EAD, USCIS does not anticipate a need
to update the Form I-765 or to collect additional information beyond that
already collected on Form I-765.

Start List of Subjects


LIST OF SUBJECTS IN 8 CFR PART 274A

 * Administrative practice and procedure
 * Aliens
 * Employment
 * Penalties
 * Reporting and recordkeeping requirements

End List of Subjects

Accordingly, for the reasons set forth in the preamble, the Secretary of
Homeland Security amends 8 CFR part 274a as follows:

Start Part


PART 274A CONTROL OF EMPLOYMENT OF ALIENS

End Part Start Amendment Part

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

End Amendment Part Start Authority

Authority: 8 U.S.C. 1101, 1103, 1324a; 48 U.S.C. 1806; 8 CFR part 2; Pub. L.
101-410, 104 Stat. 890, as amended by Pub. L. 114-74, 129 Stat. 599.

End Authority Start Amendment Part

2. Effective May 4, 2022, through October 15, 2025, amend § 274a.13 by adding
paragraph (d)(5) to read as follows:

End Amendment Part
§ 274a.13
Application for employment authorization.
* * * * *

(d) * * *

(5) Temporary increase in the automatic extension period. The authorized
extension period stated in paragraph (d)(1) of this section, 8 CFR
274a.2(b)(1)(vii), and referred to in paragraphs (d)(3) and (4) of this section
is increased to up to 540 days for all eligible classes of aliens as described
in paragraph (d)(1) who properly filed their renewal application on or before
October 26, 2023. Such automatic extension period will automatically terminate
the earlier of up to 540 days after the expiration date of the Employment
Authorization Document (Form I-766, or successor form) or upon issuance of
notification of a denial on the renewal request, even if such date is after
October 26, 2023. Aliens whose automatic extension under paragraph (d)(1)
expired before May 4, 2022, will receive an automatic resumption of employment
authorization and the validity of their Employment Authorization Document, as
applicable, for an additional period beginning from May 4, 2022, and up to 540
days from the expiration of their employment authorization and/or Employment
Authorization Document as shown on the face of such document. An Employment
Authorization Document that has expired on its face is considered unexpired when
combined with a Notice of Action (Form I-797C), which demonstrates that the
requirements of paragraph (d)(1) of this section and this paragraph (d)(5) have
been met, notwithstanding any notations on such notice indicating an automatic
extension of up to 180 days. Start Printed Page 26652 Nothing in this paragraph
(d)(5) will affect DHS's ability to otherwise terminate any employment
authorization or Employment Authorization Document, or extension period for such
employment authorization or document, by written notice to the applicant, by
notice to a class of aliens published in the Federal Register , or as provided
by statute or regulation, including 8 CFR 274a.14.

Start Signature

Alejandro N. Mayorkas,

Secretary, U.S. Department of Homeland Security.

End Signature End Supplemental Information


FOOTNOTES

1.  Bureau of Labor Statistics data show that, as of December 2021, there were
0.6 unemployed persons per job opening. U.S. Department of Labor, U.S. Bureau of
Labor Statistics, Number of unemployed persons per job opening, seasonally
adjusted (Jan. 2007 through Jan. 2022), https://www.bls.gov/ charts/
job-openings-and-labor-turnover/ unemp-per-job-opening.htm (last visited Mar.
14, 2022).

Back to Citation

2.  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. Employment-authorized L
nonimmigrant spouses are an example. See INA sec. 214(c)(2)(E), 8 U.S.C.
1184(c)(2)(E).

Back to Citation

3.   See 8 CFR 274a.12(a).

Back to Citation

4.   See 8 CFR 274a.12(b).These noncitizens are issued an Arrival-Departure
Record (Form I-94) indicating their employment-authorized status in the United
States and do not file separate requests for evidence of employment
authorization.

Back to Citation

5.   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”).

Back to Citation

6.   See 8 CFR 103.2(a) and 8 CFR 274a.13(a). Applicants who are employment
authorized incident to status ( e.g., asylees, refugees, TPS beneficiaries) will
file Form I-765 to request a Form I-766 EAD. Applicants who are filing within an
eligibility category listed in 8 CFR 274a.12(c) must use Form I-765 to request
both employment authorization and an EAD.

Back to Citation

7.   See 8 CFR 274a.13(a).

Back to Citation

8.   See 8 CFR 274.12(a) and (c).

Back to Citation

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

Back to Citation

10.  For example, the status of asylees generally continues unless and until it
is adjusted to lawful permanent resident status, and asylees are employment
authorized incident to status. Therefore, asylees' employment authorization
typically will continue beyond the expiration date on the EAD, which is issued
in 2-year increments. On the other hand, a K-1 fiancée, while also employment
authorized incident to status, will receive only a 90-day period in K-1
nonimmigrant status upon admission to the United States. The expiration date of
EADs issued to K-1 fiancées will coincide with the 90-day admission period.

Back to Citation

11.  For an initial hire, the employee must present the employer with acceptable
documents evidencing identity and employment authorization. The lists of
acceptable documents can be found on the last page of the Form I-9. See
https://www.uscis.gov/ sites/ default/ files/ document/ forms/ i-9.pdf (last
updated Oct. 21, 2019). An employer that does not properly complete Form I-9,
which includes reverifying continued employment authorization, or continues to
employ an individual with knowledge that the individual is not authorized to
work may be subject to civil money penalties. See https://www.uscis.gov/
i-9-central/ handbook-for-employers-m-274/
100-unlawful-discrimination-and-penalties-for-prohibited-practices/
108-penalties-for-prohibited-practices (last updated Apr. 27, 2020).

Back to Citation

12.   See https://www.uscis.gov/ sites/ default/ files/ document/ forms/
i-765instr.pdf (08/25/20 edition). In reviewing the Form I-765, USCIS ensures
that the fee was paid, a fee waiver was granted, or a fee exemption applies.

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13.   See, e.g., INA sec. 237(a)(1)(C), 8 U.S.C. 1227(a)(1)(C).

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

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

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16.   See 8 CFR 274a.13(d) (2016).

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17.   See Final Rule, Retention of EB-1, EB-2, and EB-3 Immigrant Workers and
Program Improvements Affecting High-Skilled Nonimmigrant Workers, 81 FR 82398
(Nov. 18, 2016) (“AC21 Final Rule”). The final rule was issued after a proposed
rule was published in the Federal Register . See Notice of Proposed Rulemaking,
Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements
Affecting High-Skilled Nonimmigrant Workers, 80 FR 81899 (Dec. 31, 2015) (“AC21
NPRM”).

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

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19.   See 80 FR at 81927 (“DHS proposes to amend its regulations to help prevent
gaps in employment authorization for certain employment-authorized individuals
who are seeking to renew expiring EADs. . . . These provisions would
significantly mitigate the risk of gaps in employment authorization and required
documentation for eligible individuals, thereby benefitting them and their
employers.”).

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20.   See 80 FR at 81927 (“DHS believes that this time period [of up to 180
days] is reasonable and provides more than ample time for USCIS to complete the
adjudication process based on USCIS's current 3-month average processing time
for Applications for Employment Authorization.”); 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).”).

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21.  8 CFR 274a.13(d)(1)(i). TPS beneficiaries must file during the designated
period in the applicable Federal Register notice. In addition, the TPS and
TPS-related documentation, including EADs, of certain TPS beneficiaries under
the TPS designations for Haiti, El Salvador, Sudan, Nicaragua, Honduras, and
Nepal are continued subject to current court orders and litigation compliance
Federal Register notices. See 86 FR 50725 (Sept. 10, 2021) (continuing TPS and
TPS-related documentation for eligible beneficiaries of the TPS designations for
the noted six countries through December 31, 2022, and further noting that DHS
will issue future such notices as necessary to comply with court orders in
Ramos, et al. v. Nielsen, et al., No. 18-cv-01554 (N.D. Cal. Oct. 3, 2018) (“
Ramos ”); Saget, et al. v. Trump, et al., No. 18-cv-1599 (E.D.N.Y. Apr. 11,
2019) (“ Saget ”); and Bhattarai v. Nielsen, No. 19-cv-00731 (N.D. Cal. Mar. 12,
2019) (“ Bhattarai ”). DHS also will comply with any superseding court orders in
these lawsuits. This TFR will be construed in harmony, to the extent possible,
with the existing and any future court orders in this referenced litigation.

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22.   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 request for renewal (Form I-765)). See also DHS, USCIS, Employment
Authorization for Certain H-4, E, and L Nonimmigrant Dependent Spouses,
PA-2021-25 (Nov. 12, 2021), https://www.uscis.gov/ sites/ default/ files/
document/ policy-manual-updates/ 20211112-EmploymentAuthorization.pdf
(explaining that certain H-4, E, or L dependent spouses may submit a document
combination including an unexpired Form I-94 indicating H-4, E, or L-2
nonimmigrant status alongside Form I-797C).

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23.   See 8 CFR 274a.13(d)(iii).

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24.   See DHS, USCIS, Automatic Employment Authorization Document (EAD)
Extension, https://www.uscis.gov/ eadautoextend (last updated Nov. 12, 2021).

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25.   See 8 CFR 274a.12(a)(3).

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26.   See 8 CFR 274a.12(a)(5).

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27.   See 8 CFR 274a.12(a)(7).

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28.   See 8 CFR 274a.12(a)(8).

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29.   See 8 CFR 274a.12(a)(10).

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

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

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

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33.   See 8 CFR 274a.12(c)(19).

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34.   See 8 CFR 274a.12(c)(8).

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35.   See 8 CFR 274a.12(c)(9).

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36.   See 8 CFR 274a.12(c)(10).

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37.   See 8 CFR 274a.12(c)(16).

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38.   See 8 CFR 274a.12(c)(20).

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39.   See 8 CFR 274a.12(c)(22).

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40.   See 8 CFR 274a.12(c)(24).

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41.   See 8 CFR 274a.12(c)(26).

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42.   See 8 CFR 274a.13(d)(3).

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43.   See 8 CFR 274a.13(d)(4).

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44.   See DHS, USCIS, Completing Section 3, Reverification and Rehires,
https://www.uscis.gov/ i-9-central/ complete-correct-form-i-9/
completing-section-3-reverification-and-rehires (last updated July 10, 2020).

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45.   See USCIS' web page at https://www.uscis.gov/ green-card/
green-card-processes-and-procedures/ employment-authorization-document (last
updated Feb. 11, 2022); see also 81 FR at 82456 (AC21 Final Rule).

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46.   See 8 CFR 274a.13(d)(3).

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

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48.  A U.S. Government Accountability Office report observed that despite
receipts remaining steady (between 8 million and 10 million) from fiscal year
(FY) 2015 through FY 2019, USCIS' processing times increased through FY 2020,
and the overall pending caseload grew an estimated 85 percent, with USCIS having
received more than 4 million applications and petitions in the first two
quarters of FY 2020, owing to the factors listed above. Factors that affected
Form I-765, specifically, will be discussed in further detail below. See
GAO-21-529, U.S. Citizenship and Immigration Services: Actions Needed to Address
Pending Caseload (Aug. 2021), pp. 9, 12, 14, and 20, https://www.gao.gov/
assets/ gao-21-529.pdf. The hiring freezes that began in the Field Operations
and Service Center Operations Directorates were eventually subsumed by an
agency-wide hiring freeze beginning May 1, 2020, which is discussed in further
detail below. USCIS lifted the agency-wide hiring freeze in March 2021.

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49.  USCIS had made some progress in addressing these backlogs before the
COVID-19 pandemic. In FY 2019, USCIS observed a backlog growth rate of less than
1 percent—the smallest growth in backlogs since 2012. This was due to a
4-percent decrease in receipts, increases in completions (naturalizations,
adjustments of status, and nonimmigrant and immigrant worker petitions), and
additional staffing. However, the COVID-19 pandemic reversed any gains USCIS had
made.

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50.  Other contributing factors include competing priorities, such as litigation
obligations and administration priorities, that shifted resources away from Form
I-765 adjudications or caused the agency to focus resources on certain
categories or subcategories of Form I-765; and policy changes (such as expanding
biometrics requirements to certain applicants filing Form I-539, Application to
Extend/Change Nonimmigrant Status), which delayed USCIS' ability to approve any
Form I-765 relying on an underlying Form I-539 decision. See GAO-21-529, U.S.
Citizenship and Immigration Services: Actions Needed to Address Pending Caseload
(Aug. 2021), pp. 15-20. However, these factors, while relevant, have been
mitigated through recent policy changes and, therefore, are no longer a
significant cause of gaps in employment authorization for applicants. For
example, on May 17, 2021, USCIS temporarily suspended the biometrics requirement
for certain Form I-539 applicants to address the processing delays exacerbated
by limited Application Support Center (ASC) capacity due to COVID-19. See USCIS
News Alert, USCIS Temporarily Suspends Biometrics Requirement for Certain Form
I-539 Applicants, https://www.uscis.gov/ news/ alerts/
uscis-temporarily-suspends-biometrics-requirement-for-certain-form-i-539-applicants
(last updated May 13, 2021).

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51.  The median processing time represents the time it took to complete 50
percent of the cases completed in a given time period.

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52.  The time it took USCIS to complete 93 percent of these cases was 11.4
months. For more information on how USCIS calculates its processing times, see
USCIS' web page at https://egov.uscis.gov/ processing-times/ more-info (last
visited Feb. 9, 2022).

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53.  Applicants filing a Form I-765 based on a pending LRIF-based adjustment
application also use “(c)(9)” as their eligibility category on Form I-765.

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54.  In December 2021, these three filing categories made up nearly 95 percent
of the renewal EAD receipts filed in categories eligible for the automatic
extension of employment authorization. Broken down further among these three
categories: The C08 category comprised approximately 58 percent of the renewal
EAD receipts filed in categories eligible for the automatic extension, while the
C09 category comprised approximately 19 percent and the C10 comprised
approximately 18 percent.

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55.  In some cases, USCIS' data is based on its fiscal year, beginning on
October 1 and ending on September 30 of the reporting period.

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56.  Other renewal categories that fall within 8 CFR 274a.13(d) experiencing
processing times in December 2021 that exceed the 3-month goal include EAD
applicants filing under 8 CFR 274a.12(a)(5) for individuals granted asylum (6.1
to 10.2 months), (a)(10) for individuals granted withholding of deportation or
removal (7.2 to 10.3 months), and (c)(31) for VAWA self-petitioners (6.3 to 13.1
months).

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57.  Reasons for delays in case completions for these approximately 3,300
applicants included competing priorities, Requests for Evidence, staffing, and
the COVID-19 pandemic.

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58.  The 66,000 and approximately 3,300 figures reflect all EAD categories
eligible for automatic extension of employment eligibility and/or EAD validity.
Therefore, some applicants within this population, namely applicants filing
under 8 CFR 274a.12(a) (employment authorized incident to status or
circumstance), do not necessarily lose their employment authorization after the
180-day automatic extension period is exhausted. Because their employment
authorization is incident to their immigration status or circumstance, these
renewal EAD applicants' primary consequence is that their EADs become invalid.
Considering that the vast majority (approximately 95 percent as of December
2021) of renewal EAD applicants are those filing under 8 CFR 274a.12(c)(8), (9),
and (10), however, the 66,000 and 3,300 figures are presumed to represent
largely applicants whose primary consequence is a loss of employment
authorization itself. Even so, DHS recognizes harm may be experienced by
applicants filing under 8 CFR 274a.12(a) categories as well. While these
applicants may have available alternative evidentiary options other than an EAD
that they can use to show proof of employment authorization to their employers
for Form I-9 completion or for purposes of receiving State or local public
benefits ( e.g., driver's licenses), DHS recognizes that having no valid EAD may
nevertheless cause harm, including job loss.

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59.   See Employment Authorization Applications Rule and the Asylum Application,
Interview, and Employment Authorization for Applicants Rule (“Broader Asylum EAD
Rule”), 85 FR 38532 (June 26, 2020), and preliminary injunction in Casa de
Maryland Inc. et al. v. Chad Wolf et al., 8:20-cv-02118-PX (D. Md. Sept. 11,
2020).

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60.   See Asylumworks, et al. v. Alejandro N. Mayorkas, et al., No 20-CV-3815
BAH, 2022 WL 355213 (D.D.C. Feb 7, 2022).

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

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62.   See Transactional Records Access Clearinghouse, Asylum Grant Rates Climb
Under Biden (2021), https://trac.syr.edu/ immigration/ reports/ 667/ (last
updated Nov. 10, 2021) (“Asylum seekers who are represented by an attorney have
greatly increased odds of winning asylum or other forms of relief from
deportation.”).

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63.  USCIS' Field Operations Directorate (FOD) initiated a hiring freeze in
December 2019; USCIS' Service Center Operations Directorate (SCOPS) did the same
starting in February 2020. While both FOD and SCOPS adjudicate Forms I-765,
SCOPS adjudicates the vast majority, including all those filed by pending asylum
applicants (C08 category).

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

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65.   See U.S. Citizenship and Immigration Services Fee Schedule and Changes to
Certain Other Immigration Benefit Request Requirements, 85 FR 46788 (Aug. 3,
2020) (“2020 Fee Rule”). The 2020 Fee Rule, among other things, adjusted certain
immigration and naturalization benefit request fees charged by USCIS, removed
certain fee exemptions, and changed the fee waiver requirement.

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66.  On September 29, 2020, the U.S. District Court for the Northern District of
California in Immigration Legal Resource Center, et al. v. Wolf, et al.,
20-cv-05883-JWS, preliminarily enjoined DHS from implementing or enforcing any
part of the 2020 Fee Rule.

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

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68.   See 85 FR 46788 (Aug. 3, 2020). Additional categories exempt from the
filing fee include 8 CFR 274a.12(a)(8) and (10) and (c)(1), (4), (7), and (16).
The category at 8 CFR 274a.12(c)(9) is one of the top categories experiencing
unusually long processing times and, therefore, is one of the main focuses of
this rule.

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69.   See 85 FR 46788 (Oct. 2, 2020). As noted above, DHS is preliminarily
enjoined from implementing or enforcing any part of this rule.

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70.  From FY 2015 through FY 2020, USCIS received a range of approximately 2.0
to 2.3 million Form I-765 filings (seeking both initial EADs and renewal of
initial EADs) each fiscal year. In FY 2021, this figure increased to
approximately 2.6 million. This increase in Form I-765 filings, which was
largely observed in the volume of Form I-765 renewal applications sought in
categories eligible for automatic extension of EADs, contributed to the
formation of backlogs, as discussed further in Section II.C below.

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71.   See HHS, Determination that a Public Health Emergency Exists (Jan. 31,
2020), https://www.phe.gov/ emergency/ news/ healthactions/ phe/ Pages/
2019-nCoV.aspx.

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72.  Notice on the Continuation of the National Emergency Concerning the
Coronavirus Disease 2019 (COVID-19) Pandemic, 86 FR 11599 (Feb. 26, 2021);
Proclamation 9994 of March 13, 2020, Declaring a National Emergency Concerning
the Coronavirus Disease (COVID-19) Outbreak, 85 FR 15337 (Mar. 18, 2020).

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73.  HHS, Renewal of Determination that a Public Health Emergency Exists (Oct.
15, 2021), https://www.phe.gov/ emergency/ news/ healthactions/ phe/ Pages/
COVDI-15Oct21.aspx ).

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74.   See HHS, Office of the Assistant Secretary for Preparedness and Response,
Renewal of Determination that a Public Health Emergency Exists (Jan. 14, 2022),
https://aspr.hhs.gov/ legal/ PHE/ Pages/ COVID19-14Jan2022.aspx.

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75.   See 2020 USCIS Statistical Annual Report, p. 4: “[During the onset of the
COVID-19 pandemic], incoming receipts were 32 percent lower compared to the same
time period in FY 2019. By the end of FY 2020, USCIS received about 5% fewer
receipts than in FY 2019. Although receipts decreased in some of the most
frequently submitted form types, others such as the N-400 (Application for
Naturalization) and I-129 (Petition for Nonimmigrant Worker) increased slightly
from FY 2019.” In addition to the lowest number of receipts in the past 5 years,
USCIS also completed the lowest number of benefit requests in the past 5 years.
The worst rates of completion were observed during the beginning of the pandemic
when USCIS field offices and ASCs were closed to the public. While USCIS
attempted to recover by shifting adjudications to form types not requiring
in-person appearances, USCIS still completed fewer benefit requests than it
received in FY 2020. See 2020 USCIS Statistical Annual Report, p. 4.

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76.  During this time period, USCIS had an estimated $1.2-billion budget
shortfall.

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77.  A border case included credible and reasonable fear interviews, as well as
Migrant Protection Protocols (MPP) non-refoulement interviews.

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78.   See DHS, USCIS, News Release, Deputy Director for Policy Statement of
USCIS' Fiscal Outlook (June 25, 2020), https://www.uscis.gov/ news/
news-releases/ deputy-director-for-policy-statement-on-uscis-fiscal-outlook.

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79.  Form I-765 workload includes requests for initial, renewal, and replacement
employment authorization and/or EADs.

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80.  A detail is a temporary assignment of an employee to a different position
for a specified period, with the employee returning to his or her regular duties
at the end of the detail.

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81.  Such as initial and renewal Forms I-765 filed under 8 CFR 274a.12(c)(9) and
(10), which experienced a dramatic growth in processing times in 2021, as
detailed in this rule.

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82.   See, e.g., News Alert, USCIS Temporarily Closing Offices to the Public
March 18-April 1 (Mar. 17, 2020), https://www.uscis.gov/ news/ alerts/
uscis-temporarily-closing-offices-to-the-public-march-18-april-1. Some limited
emergency in-person services were available upon request during this time.

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83.  USCIS has issued a series of temporary final rules that allow asylum
offices to increase the use of telephonic interpreters, in order to minimize the
impact of this safety measure on the agency's ability to adjudicate asylum
applications in a timely manner. See Asylum Interview Interpreter Requirement
Modification Due to COVID-19, 85 FR 59655 (Sept. 23, 2020) (TFR); Asylum
Interview Interpreter Requirement Modification Due to COVID-19, 86 FR 15072
(Mar. 22, 2021); and Asylum Interview Interpreter Requirement Modification Due
to COVID-19, 86 FR 51781 (Sept. 17, 2021). As described in Section D.1. below,
asylum application processing times impact Form I-765 renewal processing because
the longer an asylum application is pending, the more times an applicant may
need to file Form I-765 to renew employment authorization. If an individual's
asylum application is approved, they no longer need to file Form I-765 to obtain
employment authorization because asylees are employment authorized incident to
status. See 8 CFR 274a.12(a)(5). While some asylees may choose to file Form
I-765 using the (a)(5) category to receive EADs as evidence of their employment
authorization, asylum applicants under the (c)(8) category make up approximately
10 times more Form I-765s than asylees under the (a)(5) category. See DHS,
USCIS, Form I 765 Application for Employment Authorization All Receipts,
Approvals, Denials Grouped by Eligibility Category and Filing Type (FY 2019-21),
https://www.uscis.gov/ sites/ default/ files/ document/ data/ I-765_
Application_ for_ Employment_ FY03-21.pdf (last updated Oct 2021). Therefore,
USCIS' efforts to minimize the impact of safety measures on the agency's ability
to adjudicate asylum applications is helping to reduce the number of asylum
applicants making up the pending Form I-765 applicant pool, which is helping to
reduce the overall Form I-765 adjudication backlog.

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84.  Although some Form I-765 applications for certain eligibility categories (
e.g., (c)(3)(A), F-1 Pre‐completion OPT; (c)(3)(B), F-1 Post-completion OPT; and
(c)(3)(C), F-1 STEM OPT extension) now can be received and adjudicated in an
electronic system, in early 2020, all Form I-765 applications were adjudicated
on paper.

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85.  USCIS sought to mitigate the impact of this biometrics capture delay by
reusing biometrics where possible. See, e.g., USCIS News Alert, USCIS to
Continue Processing Applications for Employment Authorization Requests Despite
Application Support Center Closures (Mar. 30, 2020), https://www.uscis.gov/
news/ alerts/
uscis-to-continue-processing-applications-for-employment-authorization-extension-requests-despite.

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86.  For example, in general, applicants must pay an $85 biometric collection
services fee if filing with one of the following eligibility categories: (c)(8)
An applicant with a pending asylum application requesting an initial or renewal
EAD; (c)(33) Requesting consideration of Deferred Action for Childhood Arrivals
(DACA); (c)(35) A principal beneficiary of an approved employment-based
immigrant petition who is facing compelling circumstances; (c)(36) A spouse or
unmarried dependent child of a principal beneficiary of an employment-based
immigrant petition who is facing compelling circumstances; or (c)(37) An
applicant for Commonwealth of the Northern Mariana Islands long-term resident
status.

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87.  However, the U.S. District Court for the District of Maryland's Sept. 11,
2020, preliminary injunction in Casa de Maryland Inc. et al. v. Chad Wolf et
al., 8:20-cv-02118-PX (D. Md. Sept. 11, 2020), provided limited injunctive
relief to members of two organizations, CASA de Maryland (CASA) and the Asylum
Seeker Advocacy Project (ASAP), who file Form I-589 or Form I-765 as asylum
applicants. Specifically, the court preliminarily enjoined enforcement of
several regulatory changes in the Removal of 30-Day Processing Provision for
Asylum Applicant-Related Form I-765 Employment Authorization Applications Rule,
85 FR 37502 (June 22, 2020), and the Broader Asylum EAD Rule for CASA and ASAP
members, including the requirement to submit biometric information as part of
the filing of a Form I-765 based on an asylum application. On February 7, 2022,
the U.S. District Court for the District of Columbia in Asylumworks, et al. v.
Alejandro N. Mayorkas, et al. vacated these two rules entirely.

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88.   See above section entitled “Overview of Issues Negatively Impacting Form
I-765 Processing Times.”

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89.  For example, in 2020, an applicant seeking employment authorization based
on a pending adjustment of status application would have obtained an EAD valid
for 1 year, if eligible. With processing times for adjustment of status
applications extending beyond 1 year, the applicant would have to apply to renew
the EAD to obtain employment authorization while their adjustment of status
application remains pending. Where adjustment of status applications with an
immediately available immigrant visa are processed within the 6-month processing
goal, such applicants generally should not have to renew their EAD as they would
receive employment authorization incident to their lawful permanent resident
status upon approval of their adjustment of status application. In recognition
of prolonged processing times for adjustment of status applications, USCIS
updated its policy guidance to provide a 2-year validity period for initial and
renewal EADs issued based on pending adjustment of status applications. See
USCIS Policy Manual, Policy Alert (PA-2021-10), Employment Authorization for
Certain Adjustment Applicants (Jun. 9, 2021), https://www.uscis.gov/ sites/
default/ files/ document/ policy-manual-updates/
20210609-EmploymentAuthorization.pdf. In doing so, USCIS attempted to alleviate
the burden on adjustment of status applicants seeking EADs. Unfortunately, USCIS
was unable to take similar steps for the asylum applicant population, as it was
already providing 2-year validity periods for employment authorization and EADs,
the maximum allowed by the Broader Asylum EAD Rule. As of December 2021, the
median processing time for affirmative asylum applications (Form I-589) is 55.4
months. As of December 2021, the median processing time for adjustment of status
applications (Form I-485) is 13.2 months, however some adjustment applications
remain pending much longer because of regression in the cutoff dates used to
determine when an immigrant visa is immediately available.

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90.   See Asylum Interview Interpreter Requirement Modification Due to COVID-19,
85 FR 59655 (Sept. 23, 2020) (TFR); Asylum Interview Interpreter Requirement
Modification Due to COVID-19, 86 FR 15072 (Mar. 22, 2021); and Asylum Interview
Interpreter Requirement Modification Due to COVID-19, 86 FR 51781 (Sept. 17,
2021).

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91.  As an example, USCIS expanded telework flexibility arrangements under which
an employee could perform the duties and responsibilities of such employee's
position, and other authorized activities, from an approved worksite other than
the location from which the employee would normally work. In addition, certain
telework restrictions were lifted ( e.g., allowing split shifts, non-standard
work hours, and mixing telework and leave) so that caregivers and parents could
meet personal and work obligations while working from home.

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92.   See Impact of Pandemic Response Measures, p. 6, in Backlog Reduction of
Pending Affirmative Asylum Cases: Fiscal Year 2021 Report to Congress (Oct. 20,
2021), https://www.dhs.gov/ sites/ default/ files/ 2021-12/
USCIS%20-%20Backlog%20Reduction%20of%20Pending%20Affirmative%20Asylum%20Cases.pdf.

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93.  In the last three fiscal years, the median processing time across all form
types was 8.7 months in FY 2021, 8.3 months in FY 2020, and 6.5 months in FY
2019.

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94.  For a detailed description of the many flexibilities and precautionary
measures USCIS provides to combat COVID-19, see USCIS's website at
https://www.uscis.gov/ about-us/ uscis-response-to-covid-19 (last updated Mar
30, 2022).

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95.   See Deadlines for Certain Requests, Notices, and Appeals in the USCIS
Response to COVID-19 web page at https://www.uscis.gov/ about-us/
uscis-response-to-covid-19 (last updated Mar. 30, 2022).

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96.  Backlog is defined as the volume of pending applications that exceed the
level of acceptable pending cases. Whether a pending case load is acceptable is
pegged to the volume of applications receipted during the target cycle time
period ( e.g., 5 months). The target cycle time refers to the processing time
goal for a given application type. Net backlog is defined similarly to backlog,
except that the number of pending applications is reduced to account for cases
in active suspense categories ( i.e., cases that are deducted from the gross
backlog, such as cases with a pending Request for Evidence, cases awaiting visa
availability from the Department of State, or cases pending re-examination for
an N-400, Application for Naturalization).

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97.  This increase in Form I-765 filings may have been driven primarily by
litigation and the “frontlog” of applications at the three USCIS lockbox
facilities, which receive and process applications and payments in Chicago,
Illinois; Phoenix, Arizona; and Lewisville, Texas. On July 20, 2020, Casa de
Maryland, Inc. filed suit against then-Acting DHS Secretary Chad Wolf and DHS to
enjoin changes to EAD rules for asylum seekers. On September 11, 2021, the U.S.
District Court of Maryland issued a preliminary injunction of the new EAD rules.
See Casa de Maryland v. Wolf, 486 F.Supp.3d 928 (D. Md. Sept. 11, 2020).
Consequently, approximately 23,000 applications pending at the USCIS lockbox
were rejected in late October 2020 for a failure to pay the required biometrics
fee or a failure to provide proof that the applicant was a member of the
litigation class. These applications were refiled and, coupled with the
prioritization of initial Form I-765 applications under category C08 due to the
litigation, led to a redirection of resources away from Form I-765 renewal
applications. In addition, as noted above, the lockbox was experiencing a
“frontlog” of applications, which led to a processing delay.

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98.  USCIS is actively working to address prolonged processing times affecting
applications and petitions that form the basis of a Form I-765 filing. These
measures are described in further detail in Section D.1 below.

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99.   See Background, p. 2, in Backlog Reduction of Pending Affirmative Asylum
Cases: Fiscal Year 2021 Report to Congress (Oct. 20, 2021), https://www.dhs.gov/
sites/ default/ files/ 2021-12/
USCIS%20-%20Backlog%20Reduction%20of%20Pending%20Affirmative%20Asylum%20Cases.pdf
(“The affirmative asylum backlog is the result of a prolonged, significant
increase in affirmative asylum application filings and credible fear screenings,
which are processed by the U.S. Citizenship and Immigration Services (USCIS)
asylum offices. Between FY 2013 and FY 2017, despite significant staffing
increases, receipt growth in asylum office workloads outpaced the expansion of
asylum office staffing and the establishment of new or expanded facilities
needed to support additional staffing growth.”).

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100.  See Executive Office of Immigration Review Adjudication Statistics, Total
Asylum Applications (Jan 19, 2022), https://www.justice.gov/ eoir/ page/ file/
1106366/ download.

101.  Data reflects affirmatively filed I-589 asylum applications and do not
include defensive asylum claims before a DOJ EOIR immigration court. See USCIS,
Number of Service Wide Forms, October 1, 2021-December 31, 2021,
https://www.uscis.gov/ sites/ default/ files/ document/ reports/ Quarterly_ All_
Forms_ FY2022_ Q1.pdf (last updated Feb. 2022).

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102.  For example, USCIS also encountered large increases of filings of Form
I-131, Application for Travel Document, possibly related to the increase in
filings of Form I-485, Application to Register Permanent Residence. From CY 2020
to CY 2021, USCIS observed an overall 25.8 percent increase in receipts across
form types. Although this represents a substantial increase, there was a 29
percent increase in Form I-765 renewal applications in the auto extension
categories.

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103.  One such process or plan is the Model for Operational Planning, which
considers the backlog and the outlook of future backlogs based on current and
future staffing. The primary way staffing for backlog reduction has taken place
is through improved efficiencies to current processes as well as appropriations
from Congress.

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104.  See Section B.2 for more information on USCIS' use of overtime funds as a
tool to manage its workload.

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105.  For example, USCIS completed 15,904 Form I-765 C08 renewals in July 2021.
After applying overtime funds to Form I-765s, USCIS completed 23,987 and 24,267
Form I-765 C08 renewals in August and September 2021, respectively. However,
USCIS returned to its prior completion rate in October 2021 (where USCIS
completed 13,932 C08 renewals) due to such overtime funds no longer being
available in the new fiscal year. USCIS received additional appropriated funding
for overtime in FY 2022 to apply toward backlog reduction efforts, but these
funds only became available for operational use in early 2022.

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106.   See, e.g., USCIS Policy Manual, Policy Alert (PA-2022-07), Updating
General Guidelines on Maximum Validity Periods for Employment Authorization
Documents based on Certain Filing Categories (Feb. 7, 2022),
https://www.uscis.gov/ sites/ default/ files/ document/ policy-manual-updates/
20220207-EmploymentAuthorizationValidity.pdf.

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107.  Such a long pause in hiring from May 1, 2020, to March 2021 resulted in
approximately 2,000 unfilled vacancies, out of approximately 20,000 positions
across the agency. As of November 6, 2021, USCIS estimates the number of
vacancies had risen to approximately 3,000 due to primarily internal selections
following the hiring freeze, although USCIS did also add some positions as well.
USCIS estimates it will take the agency to the end of CY 2022 to fill the
current level of vacancies. While USCIS did receive $250 million in funding from
Congress for application processing, backlog reduction, and the refugee program
in late September 2021, it will take time for such funding to translate to a
significant increase in additional officers proficient at adjudicating and
completing Form I-765 renewal applications. See Extending Government Funding and
Delivering Emergency Assistance Act, 2022, Public Law 117-43 (Sept. 30, 2021).
USCIS has identified Form I-765 as well as Form I-485 and Form I-589 (which
represent two of the three major filing categories seeking renewal EADs and
eligible for automatic extension of the prior EAD) for inclusion in backlog
reduction efforts funded in part by appropriations. The $250 million
appropriated through Public Law 117-43, however, will only partly fund the 1,316
positions needed for all of USCIS' backlog reduction initiatives; therefore,
USCIS continues to seek additional funding as requested in the FY 2022
President's Budget ($345 million).

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108.   See, e.g., USCIS Policy Manual, Policy Alert (PA-2021-25), Employment
Authorization for Certain H-4, E, and L Nonimmigrant Dependent Spouses (Nov. 12,
2021), https://www.uscis.gov/ sites/ default/ files/ document/
policy-manual-updates/ 20211112-EmploymentAuthorization.pdf. See USCIS Policy
Manual, Policy Alert (PA-2021-10), Employment Authorization for Certain
Adjustment Applicants (June 9, 2021), https://www.uscis.gov/ sites/ default/
files/ document/ policy-manual-updates/ 20210609-EmploymentAuthorization.pdf.
See USCIS Policy Manual, Policy Alert (PA-2022-07), Updating General Guidelines
on Maximum Validity Periods for Employment Authorization Documents based on
Certain Filing Categories (Feb. 7, 2022), https://www.uscis.gov/ sites/ default/
files/ document/ policy-manual-updates/
20220207-EmploymentAuthorizationValidity.pdf.

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109.  Efforts to improve timely processing and remove bureaucratic hurdles are
underway. One of the first initiatives is to automatically identify pending
applications that are no longer needed (for example, a Form I-765 based on a
pending adjustment application is moot upon the applicant's adjustment of status
to that of a lawful permanent resident) and close them, thus eliminating the
need for an officer to review and allowing other applications to proceed to
adjudication more quickly. While initial results of such initiatives are
promising, it is too early to tell what the long-term, sustained impacts on
processing times will be. USCIS continues to look for additional areas where
systems can be used to identify and complete simple functions that free up
officer resources for adjudicative work.

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110.  An asylee cannot apply for initial employment authorization earlier than
150 calendar days after the date USCIS or the immigration court accepts the
asylum application.

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111.  This was the maximum time allowed under regulation until February 7, 2022,
when the U.S. District Court for the District of Columbia vacated parts of 8 CFR
274a.12(c)(8) (“Employment authorization may be granted according to the
provisions of 8 CFR 208.7 of this chapter in increments to be determined by
USCIS but not to exceed increments of two years.”). See Asylumworks, et al. v.
Alejandro N. Mayorkas, et al., No. 20-cv-3815, 2022 WL 355213 (D.D.C. Feb. 7,
2022). USCIS is considering what, if any, steps it may take in light of this
ruling.

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112.  The extended wait time for ayslum applications particularly affects many
defensive asylum filings in immigration court. (A noncitizen may apply for
asylum affirmatively with USCIS or defensively in immigration court.) As of
December 31, 2021, there were 628,551 asylum applications pending in immigration
courts. See Executive Office for Immigration Review Adjudication Statistics,
https://www.justice.gov/ eoir/ page/ file/ 1106366/ download (last visited Apr.
14, 2022). This DOJ data also implies that 156,127 and 90,880 cases were
completed in FY2020 and 2021, respectively, or an average of 123,504 cases a
year. In the first quarter of FY2022, 42,090 cases were completed. If this rate
continues, it would take approximately 4.2 years to complete the adjudication of
the total 628,551 asylum cases pending in the courts as of December 31, 2021.

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113.   See DHS Office of Immigration Statistics, 2019 Yearbook of Immigration
Statistics, Table 6, Persons Obtaining Lawful Permanent Resident Status by Type
and Major Class of Admission: Fiscal Years 2010 2019 (Sep. 2020),
https://www.dhs.gov/ sites/ default/ files/ publications/
immigration-statistics/ yearbook/ 2019/ yearbook_ immigration_ statistics_
2019.pdf.

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114.   See News Release, USCIS Announces FY 2021 Accomplishments, (Dec. 15,
2021), https://www.uscis.gov/ newsroom/ news-releases/
uscis-announces-fy-2021-accomplishments.

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115.  Applicants from China and India seeking adjustment of status based on the
employment-based third preference category experienced visa retrogression in
their respective filing categories as of October 1, 2021, impacting
approximately 75,000 applicants. For more information on visa retrogression, see
https://www.uscis.gov/ green-card/ green-card-processes-and-procedures/
visa-availability-priority-dates/ visa-retrogression (last updated Mar. 8,
2018). Based on a rate of approximately 8,000 visa numbers becoming available
for these affected categories per year, as was the case in FY 2019, it may take
more than 9 years for visas to become available for these approximately 75,000
applicants. In the interest of reducing the burden on both the agency and the
public, on June 9, 2021, USCIS increased the maximum validity period for initial
and renewal EADs issued to applicants for adjustment of status under INA 245
from 1 year to 2 years based on average processing times. See USCIS Policy
Manual, Policy Alert, Employment Authorization for Certain Adjustment Applicants
(Jun 9, 2021), https://www.uscis.gov/ sites/ default/ files/ document/
policy-manual-updates/ 20210609-EmploymentAuthorization.pdf. USCIS' return to
its processing goal of 3 months for Form I-765 renewal applications is
critically important for such applicants who may rely on timely renewals
multiple times.

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116.  See 8 CFR 274a.12(a)(1).

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117.  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 245(c)(2) and (c)(8),
8 U.S.C. 1255(c)(2) and (c)(8).

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118.   See section II, Purpose of this Temporary Final Rule.

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119.   See section II, Purpose of this Temporary Final Rule, Table 1. Recent
Dramatic Growth in 50th and 93rd Percentile Processing Times for Form I-765
Renewal Applications Filed by Top Three Filing Categories.

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120.  Of the 66,000 applicants, 63,000 fall into the C08, C09, and C10
categories and, therefore, are facing a gap of employment authorization. The
remaining 3,000 applicants fall into the following EAD categories: Refugees (A03
under 8 CFR 274a.12(a)(3)), asylees (A05 under 8 CFR 274a.12(a)(5)), and
withholding of deportation or removal beneficiaries (A10 under 8 CFR
274a.12(a)(10)). Such applicants are still authorized for employment incident to
status but would no longer have a valid EAD. For purposes of this rule's
analysis, DHS has determined that it is appropriate to include the 3,000
applicants who are employment authorized incident to status given their
reasonable reliance on USCIS' timely issuance of their renewal EADs. Also, it is
unknown how many applicants in this group have in their possession acceptable
alternative documentation they can show their employers in order to maintain
their employment ( e.g., Form I-94 or an unrestricted Social Security card
together with an unexpired State-issued driver's license pursuant to 8 CFR
274a.2(b)(1)(v)). Moreover, through its public outreach efforts, DHS has learned
that job loss has affected this group on account of the lack of sufficient
documentation to present to employers for Form I-9 completion.

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121.  All U.S. employers must properly complete Form I-9 for each individual
they hire for employment in the United States. See I-9, Employment Eligibility
Verification USCIS web page, https://www.uscis.gov/ i-9 (last updated Apr 13,
2021).

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122.  As noted elsewhere in this preamble, the number of applicants who face
expiration of the up-to-180-day automatic-extension each month is approximately
30,000. However, as some applicants who are already past the 180-day automatic
extension period will receive final adjudication of their application each
month, the total number of those in the population past the 180-day period is
expected to increase by 14,500 each month rather than by 30,000.

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123.  As mentioned above in section II.D.1, USCIS had approximately 3,000
vacancies, 905 of which were officer positions in FOD and SCOPS, the two
directorates that adjudicate Form I-765 renewal applications filed in categories
eligible for automatic extension of EADs. Even after USCIS fills an Immigration
Services Officer (ISO) position, there is a delay between the time of hiring and
the time the ISO is fully trained and able to complete adjudications to meet
productivity targets.

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124.  According to the U.S. Bureau of Labor Statistics (BLS), on the last
business day of January 2022, there were 11.3 million job openings and 6.3
million unemployed people. See U.S. Department of Labor, U.S. Bureau of Labor
Statistics, Job Openings and Labor Turnover—January 2022 (Mar. 9, 2022),
https://www.bls.gov/ news.release/ pdf/ jolts.pdf; U.S. Department of Labor,
U.S. Bureau of Labor Statistics, The Employment Situation—February 2022 (Mar. 4,
2022), https://www.bls.gov/ news.release/ pdf/ empsit.pdf. From June 2021
through January 2022, the ratio of unemployed persons per job opening was below
1.0, meaning that there were more job openings than individuals seeking work.
For context, there were roughly 0.8 unemployed persons per job opening in
January and February 2020 before COVID. U.S. Department of Labor, U.S. Bureau of
Labor Statistics, Number of unemployed persons per job opening, seasonally
adjusted (Jan. 2007 through Jan. 2022), https://www.bls.gov/ charts/
job-openings-and-labor-turnover/ unemp-per-job-opening.htm (last visited Mar.
14, 2022). See also Christopher Decker, Lurking behind lackluster jobs gain are
a stagnating labor market and the threat of omicron, The Conversation, Jan. 7,
2022, 12:50 p.m. EST, https://theconversation.com/
lurking-behind-lackluster-jobs-gain-are-a-stagnating-labor-market-and-the-threat-of-omicron-174534;
Ben Casselman, More quit jobs than ever, but most turnover is in low-wage work.,
N.Y. Times, Jan. 4, 2022, https://www.nytimes.com/ 2022/ 01/ 04/ business/
economy/ job-openings-coronavirus.html; Lucia Mutikani, U.S. labor market
recovery gaining steam; unemployment rolls smallest in 52 years, Reuters, Feb.
24, 2022, 11:48 a.m. EST, https://www.reuters.com/ business/
us-labor-market-recovery-gaining-steam-unemployment-rolls-smallest-52-years-2022-02-24/
.

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125.   See U.S. Department of Labor, U.S. Bureau of Labor Statistics, Civilian
labor force participation rate (Feb. 2002 through Feb. 2022),
https://www.bls.gov/ charts/ employment-situation/
civilian-labor-force-participation-rate.htm (last visited Mar. 8, 2022).

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126.  DHS is applying this rule to all renewal EAD application categories
eligible for automatic extension pursuant to 8 CFR 274a.13(d), even though some
of these categories currently experience processing times that do not raise a
risk of the applicant experiencing a lapse in employment authorization or
documentation. As stated earlier, 95 percent of applications fall within the
C08, C09, and C10 categories. DHS has made this decision because it has
determined that it would not be operationally practical for USCIS to implement a
different approach; making distinctions among categories would cause confusion
among employers and employees; and backlogs and processing times may yet
increase for these other categories.

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127.  The estimated processing time is calculated using the current number of
pending renewal applications as of December 31, 2021 (520,000), adding in the
estimated 55,000 new incoming receipts each month, and subtracting the 34,000
estimated completions each month to estimate the pending inventory at the end of
December 2022. Next, the USCIS cycle time methodology is applied to calculate
the processing time statistic ( see “Cycle Time Methodology” on the USCIS
processing times website at https://egov.uscis.gov/ processing-times/ more-info
(last visited Apr 19, 2022)). The upper range value of 18 months is estimated by
multiplying the cycle time by 1.3 based on the cycle time methodology. Note that
individual offices may have higher or lower processing times, but the general
USCIS-wide processing times likely would fall in the 14- to 18-month range.

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128.  These projections are based on USCIS processes in place as of December 31,
2021, and do not account for other changes USCIS is exploring outside of this
TFR and that may be implemented concurrent with this TFR. USCIS is committed to
doing everything possible under the law and current resource availability to
mitigate the impact of EAD renewal application processing delays on applicants.

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129.  USCIS has determined that a processing time of 3 months for Form I-765
renewals would suffice to prevent lapses in employment authorization for most
applicants who are eligible for the up to 180-day automatic extension. See 80 FR
at 81911 (AC21 NPRM). See 81 FR at 82398 (AC21 Final Rule).

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130.  USCIS estimates that 150,000-200,000 pending requests translates roughly
to a 3-month processing time, as the figure reflects 3 months' worth of Form
I-765 renewal receipts.

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131.  This figure is based on an analysis of historic rates of completion.
Between FY 2019 and FY 2021, the total officer hours for all Form I-765
processing (initials and renewals for all categories, including non-automatic
extension categories) ranged from approximately 460,000 (FY 2019) to 420,000 (FY
2021), the equivalent of approximately 38,300 to 35,000 officer hours per month
to process approximately 153,200 to 140,000 cases per month. Therefore, each
case took an average of 15-minutes to process. Based on the USCIS Volume
Projection Committee forecasts, USCIS expects to receive about 2.2 million Form
I-765s in FY 2022 and FY 2023. Using the 15-minute per case factor, and based on
the 2.2 million projections, USCIS would need to expend approximately 45,800
officer hours a month to meet incoming demand or increase adjudication
efficiencies through hiring, resource allocation, and efficiency gains.

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132.  While USCIS expects to return to its 3-month processing goal by the end of
the 18-month period, DHS will continue to provide eligible renewal applicants up
to 540 days of automatic extension as outlined in this rule throughout the
entirety of the 18-month period for ease of administrability, to mitigate the
potential for confusion among the regulated public, and in recognition of the
potential that circumstances outside of USCIS's control may frustrate this
expectation. Providing a set amount of additional automatic extension time for a
set time period is the least administratively burdensome approach, allowing the
agency to focus its limited resources on addressing the lengthy processing times
themselves. Additionally, DHS anticipates that this approach is the least
burdensome for the public, including employees and employers as well, since the
temporary solution remains clear, can be relied upon, and can be planned for,
and otherwise operates in the same way as the existing automatic extension
described in 8 CFR 274a.13(d)(1). DHS acknowledges that the utility of the
additional automatic extension time may diminish toward the end of the 18-month
period (or sooner, if USCIS achieves its processing goals earlier than
anticipated, due in part to backlog reduction efforts discussed in Section
II.D.1. or to other factors yet unknown or a combination of the two). However,
DHS believes that such consequence is acceptable and appropriately balances
competing policy concerns because shorter processing times ultimately mean
applicants will receive a decision on their Form I-765 renewal application
sooner and, in that event, will rely less on the automatic extension period.

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

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134.  By way of example, if an applicant timely filed a Form I-765 renewal
application that is still pending and the expiration date on the front of the
applicant's EAD is June 1, 2021, then the applicant's 180-day automatic
extension expired November 28, 2021. If the TFR is published on April 1, 2022,
then the applicant's EAD automatically becomes valid from April 1, 2022, up to
November 23, 2022, which is 540 days after June 1, 2021, the expiration date on
the face of the EAD. If the employee in this example worked without
authorization between November 29, 2021, and March 31, 2022, however, the
employee and employer may be subject to any consequences outlined in the law.

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135.  For example, if an applicant timely filed a Form I-765 renewal application
that is still pending and the expiration date on the front of the applicant's
EAD is June 1, 2021, then the applicant's 180-day automatic extension expired
November 28, 2021. If the TFR is published and effective on April 1, 2022, then
the applicant's EAD automatically becomes valid from April 1, 2022, up to
November 23, 2022, which is 540 days after June 1, 2021, the expiration date on
the face of the EAD. If the employee in this example worked without
authorization between November 29, 2021, and March 31, 2022, however, the
employee and employer would be subject to any consequences outlined in the law.

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136.  720 days is the amount of time needed to cover the up to 540-day automatic
extension and to account for the fact that renewal applicants may file their EAD
renewal application up to 180 days before their EAD expires.

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137.  The rule will be in effect for approximately 3 1/2 years, after which
paragraph (d)(5) will terminate automatically. As explained earlier in the
preamble, this effective date period, while lengthy, is necessary so that those
eligible who file a Form I-765 renewal application on the last available day of
the 18-month period during which the increased automatic extension period is
available and who qualify for an automatic extension will have the full benefit
of the up to 540-day extension period.

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

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139.  If a renewal applicant whose employment authorization and/or EAD validity
has lapsed on or before the date this rule goes into effect, May 4, 2022, and
the lapse is 540 days or more, then such applicant will not receive any
additional employment authorization and/or EAD validity under this rule. DHS
anticipates that very few applicants will be in this situation.

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140.   See 8 CFR 274a.2(b)(1)(vii). See also https://www.uscis.gov/ i-9-central/
form-i-9-resources/ handbook-for-employers-m-274/
40-completing-section-2-of-form-i-9/
44-automatic-extensions-of-employment-authorization-documents-eads-in-certain-circumstances
(last updated Nov. 16, 2021).

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141.   Id.

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142.   See 8 CFR 274a.2(c).

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143.  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. More
specifically, in the case of a TPS beneficiary who files a Form I-765 for a
renewal EAD, such TPS beneficiary would not receive the full 540 days of EAD
auto-extension where the relevant TPS country designation expires prior to that
540-day point.

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144.  HHS Control of Communicable Diseases; Foreign Quarantine, 85 FR 7874 (Feb.
12, 2020) (interim final rule to enable the CDC “to require airlines to collect,
and provide to CDC, certain data regarding passengers and crew arriving from
foreign countries for the purposes of health education, treatment, prophylaxis,
or other appropriate public health interventions, including travel
restrictions”); Control of Communicable Diseases; Restrictions on African
Rodents, Prairie Dogs, and Certain Other Animals, 68 FR 62353 (Nov. 4, 2003)
(interim final rule to modify restrictions to “prevent the spread of monkeypox,
a communicable disease, in the United States”).

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145.   See, e.g., Visas: Documentation of Nonimmigrants Under the Immigration
and Nationality Act, as Amended, 81 FR 5906, 5907 (Feb. 4, 2016) (interim rule
citing good cause to immediately require a passport and visa from certain H-2A
Caribbean agricultural workers to avoid “an increase in applications for
admission in bad faith by persons who would otherwise have been denied visas and
are seeking to avoid the visa requirement and consular screening process during
the period between the publication of a proposed and a final rule”); Suspending
the 30-Day and Annual Interview Requirements From the Special Registration
Process for Certain Nonimmigrants, 68 FR 67578, 67581 (Dec. 2, 2003) (interim
rule claiming the good cause exception for suspending certain automatic
registration requirements for nonimmigrants because “without [the] regulation
approximately 82,532 aliens would be subject to 30-day or annual re-registration
interviews” over a 6-month period).

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146.   See Util. Solid Waste Activities Grp. v. E.P.A., 236 F.3d 749, 754-55
(D.C. Cir. 2001)(citations omitted) (the Attorney General's Manual explains
“that a situation is `impracticable' when an agency finds that due and timely
execution of its functions would be impeded by the notice otherwise required in
[§ 553], as when a safety investigation shows that a new safety rule must be put
in place immediately.).

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147.   Mid-Tex Electric Coop. v. FERC, 822 F.2d 1123, 1132 (D.C. Cir. 1987).
Examples where courts have found notice-and-comment rulemaking impracticable
include: where air travel security agencies would be unable to address threats
posing “a possible imminent hazard to aircraft, persons, and property within the
United States,” Jifry v. FAA, 370 F.3d 1174,1179 (D.C. Cir. 2004); if “a safety
investigation shows that a new safety rule must be put in place immediately,”
Util. Solid Waste Activities Grp. v. EPA, 236 F.3d, 749, 755 (D.C. Cir.
2001)(ultimately finding that not to be the case and rejecting the agency's
argument); or if a rule was of “life-saving importance” to mine workers in the
event of a mine explosion, Council of the S. Mountains, Inc. v. Donovan, 653
F.2d 573, 581 (D.C. Cir. 1981) (describing that circumstance as “a special,
possibly unique, case”). This prong sets a high bar for the agency to meet.

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148.  See National Women, Infants, & Children Grocers Ass'n v. Food & Nutrition
Service, 416 F. Supp. 2d 92, 108 (D.D.C. 2006) (“[H]aving examined the totality
of circumstances in which the interim rule was promulgated, the Court finds that
the FNS' invocation of the good cause exception is justified.”).

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149.  As explained in the preamble, increasing staffing levels and the agency's
capacity are closely tied to the agency's ability to recoup adjudicatory costs
through a fee rule, overcoming the effects of the hiring freeze and pandemic
related consequences, and backlog reduction efforts. However, none of the
efforts undertaken by the agency are realized immediately as these processes are
lengthy, time-consuming, and ongoing.

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150.  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.

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151.   See USCIS' analysis outlined in the preamble at section IV.B, “Executive
Order 12866 (Regulatory Planning and Review) and Executive Order 13563
(Improving Regulation and Regulatory Review),” regarding the affected
population.

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152.  Labor earnings includes wages and salaries as well as benefits ( e.g.,
paid leave, supplemental pay, insurance). Amount shown as total present value at
a 7 percent discount rate.

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153.   See FN 124.

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154.  Turnover costs are calculated as a percent of annual salary. Amount shown
as total present value, using a 7 percent discount rate.

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155.  As explained elsewhere in this preamble, 8 CFR 274.13(d) was proposed in
2016 to mitigate the risk of gaps in employment authorization and required
documentation, and its related consequences for eligible renewal applicants and
their employers. See AC21 NPRM, 80 FR 81899, 81927. In the AC21 NPRM, DHS
explained that it believed the 180-day auto extension to be a reasonable and
effective amount of time to mitigate that risk. See 80 FR at 81927 (“DHS
believes that this time period [of up to 180 days] is reasonable and provides
more than ample time for USCIS to complete the adjudication process based on
USCIS's current 3-month average processing time for Applications for Employment
Authorization.”). After having received and carefully considered public
comments, DHS published the final rule. Thus, the concept of the up to 180-day
automatic extension has been tested in the public sphere already and gone
through proper rulemaking. This TFR is merely a temporary 18-month deviation
from the 180-day timeframe, warranted by this untenable situation.

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156.  While the effective date for a substantive rule under the APA is not less
than 30 days, 5 U.S.C. 553(d), this rule is a major rule subject to the
Congressional Review Act, codified at 5 U.S.C. 801 through 808. Under 5 U.S.C.
801, a major rule's effective date generally is delayed for at least 60 days.
Under the APA and the Congressional Review Act, however, the agency is exempt
from the delayed effective date requirements of both acts if the agency provides
good cause. See 5 U.S.C. 553(d) and 808(2).

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157.  As of March 1, 2003, the former INS ceased to exist as an agency within
the United States Department of Justice, and its functions respecting
applications for immigration benefits (such as the adjudication of requests for
employment authorization and/or EADs) were transferred to United States
Citizenship and Immigration Services in the United States Department of Homeland
Security. See Homeland Security Act of 2002, Public Law 107-296, sec. 471(a),
(Nov. 25, 2002); 68 FR10922 (Mar. 6, 2003). Additionally, under the Homeland
Security Act sec. 101(b)(1)(F), 6 U.S.C. 111(b)(1)(F), USCIS, as a DHS
component, should exercise this function in a manner that ensures that the
overall economic security of the United States is not diminished by efforts,
activities, and programs aimed at securing the homeland.

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158.  Courts have been more inclined to finding good cause for issuance of TFRs
if the effect is limited in scope and duration. See, e.g., San Diego Navy
Broadway Complex Coalition v. U.S. Coast Guard, 2011 WL 1212888, *6 (S.D. Cal.
2011) (finding good cause for issuance of a TFR because agency limited its
effect for several months and also explicitly indicated its intent to initiate
notice-and-comment rulemaking); 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. v. Donovan, 653 F.2d 573 (D.C.
Cir. 1981) (upholding Mine Safety and Health Administration rule delaying the
effective date without notice and comment).

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159.  DHS believes that 720 days is the amount of time needed to cover the up to
540-day automatic extension and to account for the fact that renewal applicants
may file their EAD renewal application up to 180 days before their EAD expires.

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160.  These measures include staffing increases and reallocations to focus on
Form I-765, backlog reduction initiatives that apply technology in strategic
ways to more efficiently adjudicate Forms I-765, new monthly completion goals,
and policy changes to improve efficiency for the agency and eliminate
unnecessary hurdles for applicants. In addition, USCIS is focused on addressing
prolonged processing times in other areas impacting Form I-765 overall
processing times also, for example, in cases where a Form I-765 filing is based
on an underlying benefit request, such as an application for asylum or to adjust
to lawful permanent resident status.

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161.   See USCIS' analysis outlined in the preamble at section IV.B, “Executive
Order 12866 (Regulatory Planning and Review) and Executive Order 13563
(Improving Regulation and Regulatory Review).”

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162.  The near-term captures the dates of January 1, 2022, to mid-April, 2022,
when the TFR is expected to take effect.

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163.  Bureau of Labor Statistics data show that as of December 2021, there were
0.6 unemployed persons per job opening. U.S. Department of Labor, U.S. Bureau of
Labor Statistics, Number of Unemployed Persons per Job Opening, Seasonally
Adjusted (Jan. 2007 through Jan. 2022), https://www.bls.gov/ charts/
job-openings-and-labor-turnover/ unemp-per-job-opening.htm (last visited Mar.
14, 2022).

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164.  Boardman et al., Cost-Benefit Analysis Concepts and Practice (2018), p.152

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165.  For regulatory analysis purposes, DHS generally assumes the value of time
for unemployed individuals is at least the value of the Federal minimum wage.

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166.  66,077 “current” + 96,786 “near-term” + 138,600 “future” = 301,463 total
(low end of the range) 66,077 “current” + 96,786 “near-term” + 261,000 “future”
= 423,863 total (high end of the range).

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167.  Data provided by DHS, USCIS Office of Performance and Quality (OPQ);
Claims 3 and SAS PME; obtained on January 17, 2022.

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168.  Source: BLS, The Employment Situation—November 2021, https://www.bls.gov/
news.release/ archives/ empsit_ 12032021.pdf (last visited Dec. 10, 2021).

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169.  Calculation was made from EAD filing data, Form I-765, Application for
Employment Authorization, Eligibility Category and Filing Type FY 2003 through
2021, https://www.uscis.gov/ sites/ default/ files/ document/ data/ I-765_
Application_ for_ Employment_ FY03-21.pdf (last updated Oct. 2021). Due to the
increase in backlogs, the approval rate was calculated as the number of
approvals divided by the sum of approvals and denials, rather than the receipts
basis.

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170.  See Ernie Tedeschi, Americans Are Seeing Highest Minimum Wage in History
(Without Federal Help), N. Y. Times (Apr. 24, 2019), https://www.nytimes.com/
2019/ 04/ 24/ upshot/
why-america-may-already-have-its-highest-minimum-wage.html. We note that with
the wage level applies to 2019, but we do not make an inflationary adjustment
because not all minimum wage levels are set to adjust with inflation.

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171.  Data were provided by DHS, USCIS Immigration Records and Identity Services
Directorate (IRIS), Verification Division; obtained on December 23, 2021.

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172.  Additional details are available in the Appendix, which is located in the
Docket for this rulemaking on www.regulations.gov.

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173.  The earnings information for the NAICS codes are found in the “May 2020
National Industry-Specific Occupational Employment and Wage Estimates” in the
BLS Occupational Employment and Wage Statistics (OEWS) portal,
https://www.bls.gov/ oes/ 2020/ may/ oessrci.htm (last updated Mar. 31, 2021).
The national average wage is also found in the above OEWS suite,
https://www.bls.gov/ oes/ 2020/ may/ oes_ nat.htm (last updated Mar. 31, 2021).

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174.  OCB ranks density fit according to internal routines that evaluate the
appropriateness of several tests according to the sample size/population. In
this case, the Gamma density function fits the data best based on all continuous
distributions subject to a scoring method applicable to the test statistic of
the Anderson-Darling (A-D) test, which in this case is 40.84 (it is not however,
based on a test of significance. For sample sizes and populations that are
large, exact tests of significance based on p -values are generally unreliable
in terms of providing evidence in support of the null hypothesis for any
distribution).

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175.  The benefits-to-wage multiplier is applicable to civilian workers and is
calculated as follows: ($38.91 Total Employee Compensation per hour)/($26.85
Wages and Salaries per hour) = 1.44916 = 1.45 (rounded). See BLS, Economic News
Release, Employer Cost for Employee Compensation (June 2021), Table 1, Employer
Costs for Employee Compensation by ownership (dated September 16, 2021, reissued
Dec. 17, 2021), https://www.bls.gov/ news.release/ archives/ ecec_ 09162021.htm
(last visited Feb. 23, 2022).

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176.  DHS assumes that all EAD renewal applicants are employed full-time; DHS
recognizes that some employees may be employed only part-time. DHS recognizes
this may result in an overestimate of the below stabilized earnings estimates.

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177.   PA × EH × BM × Ts × DL = 266,841 to 375,545 Adjusted Population × $11.80
to $36.78 Hourly Earnings × 1.45 Benefits Multiplier × 5.714 Time Scalar × Gamma
Distributed Lapse Duration in Calendar Days.

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178.  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.

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179.  In one sense, the stabilized earnings impacts are overstated a bit. For
some portion of the near-term population, the effective date of the TFR would
interrupt their EAD lapse such that the lapse would not be as long as it
otherwise would. It would be extremely difficult to attempt to estimate this
reality quantitatively, as, over the course of the near-term, EADs would lapse
at different points in time and some would be approved prior to the TFR while
others would have their lapse interrupted by it.

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180.   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,
https://www.thebalance.com/ state-income-tax-rates-3193320 (last updated Jan. 3,
2022).

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181.  The various employment taxes are discussed in more detail, see
https://www.irs.gov/ businesses/ small-businesses-self-employed/
understanding-employment-taxes (last updated Mar. 14, 2022). See IRS Publication
15, Circular E, Employer's Tax Guide for specific information on employment tax
rates (Dec. 16, 2021). https://www.irs.gov/ pub/ irs-pdf/ p15.pdf. Relevant
calculation: (6.2 percent Social Security + 1.45 percent Medicare) × 2 employee
and employer losses = 15.3 percent total estimated public tax impact.

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182.  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.

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183.  We have no basis to say how many employers will be impacted, because any
individual employer could have hired more than one of the EAD holders in the
population. Therefore, if each individual was hired by one and only one
business, the number of employers impacted would converge to the maximum
population.

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184.  For additional descriptions of the components of labor turnover costs, see
“Employee retention: The Real Cost of Losing an Employee,” by Gabrielle Smith,
PeopleKeep (September 17, 2021), https://www.peoplekeep.com/ blog/
employee-retention-the-real-cost-of-losing-an-employee.

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185.  See “There Are Significant Business Costs to Replacing Employees,” By
Heather Boushey and Sarah Jane Glynn (Nov. 16, 2012), Center for American
Progress, https://www.americanprogress.org/ issues/ economy/ reports/ 2012/ 11/
16/ 44464/ there-are-significant-business-costs-to-replacing-employees/ .

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186.   See “This Fixable Problem Costs U.S. Businesses $1 Trillion,” by Shane
Mcfeely and Ben Wigert, Workplace (March 13, 2019): https://www.gallup.com/
workplace/ 247391/ fixable-problem-costs-businesses-trillion.aspx. See also
“Dangers of Turnover: Battling Hidden Costs,” by Kate Heinz (last updated: March
25, 2020), Built in, https://builtin.com/ recruiting/ cost-of-turnover.

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187.  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 “112 Employee Turnover Statistics: 2021
Causes, Cost & Prevention Data,” by Louie Andre, Finances Online,
https://financesonline.com/ employee-turnover-statistics/ #cost.

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188.   See “Improving U.S. Labor Standards and the Quality of Jobs to Reduce the
Costs of Employee Turnover to U.S. Companies,” By Kate Bahn and Carmen Sanchez
Cumming (December 2020), Washington Center for Equitable Growth, at:
https://equitablegrowth.org/ wp-content/ uploads/ 2020/ 12/
122120-turnover-costs-ib.pdf. The data is found in the methodological appendix,
located in the Docket for this rulemaking.

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189.  $36.78 × 2,080 = $76,502. DHS assumes that all EAD renewal applicants are
employed full-time; DHS recognizes that some employees may work only part-time.
However, the $76,502 represents the maximum of the range and employees who earn
less wages, such as those who work part-time, are captured by the lower salaries
included in the range for LTC estimates.

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190.  For the specific data points used, see the Technical Appendix, located in
the Docket for this rulemaking.

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191.  OCB indicates that the multiple continuous distributions are appropriate
for the data but ranks the Beta distribution highest in terms of goodness of fit
with an A-D test statistic of 0.1336. The four produced parameters are as
follows: minimum= 0.0314, maximum = .987, alpha = 1.214, Beta = 4.267.

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192.  Adjusted Population × (1-0.32%) of the population whose EAD would be
adjudicated after the 540-day auto-extension window × $11.80 to $36.78 Hourly
Earnings × Beta Distributed Labor Turnover Cost.

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193.  The beta distribution includes two parameters, alpha (α) and beta (β),
which control the shape of distribution and thus influence the minimum and
maximum values.

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194.  When there are correlated assumptions, OCB does not provide sensitivity
for the uncorrelated input, which, in this case, is the population. As a result,
the sensitivity analysis indicates that the variation in the forecasts was
contributed somewhat equally by the cost percentage (56.7 percent) and the
annual earnings (42.7 percent).

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195.  Transfer payments are monetary payments from one group to another that do
not affect total resources available to society. See OMB Circular A-4 pages 14
and 38 for further discussion of transfer payments and distributional effects.
Circular A-4 (Sept. 17, 2003), https://www.whitehouse.gov/ wp-content/ uploads/
legacy_ drupal_ files/ omb/ circulars/ A4/ a-4.pdf.

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196.  Bureau of Labor Statistics, Employment Situation News Release (November
2021), Table A-12, https://www.bls.gov/ news.release/ archives/ empsit_
12032021.htm.

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197.  Bureau of Labor Statistics, Duration of Unemployment, Seasonally Adjusted,
https://www.bls.gov/ charts/ employment-situation/ duration-of-unemployment.htm
(last visited Mar. 9, 2022).

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198.  BLS, Employment Situation, Table A-1. Employment status of the civilian
population by sex and age. The figure applies to the civilian labor force,
seasonally adjusted, https://www.bls.gov/ news.release/ archives/ empsit_
12032021.htm (last visited Dec. 14, 2021).

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199.   See 5 U.S.C 804(2).

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200.   See 5 U.S.C. 808(2).

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201.   See 2 U.S.C. 1532(a).

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202.  The term “Federal mandate” means a Federal intergovernmental mandate or a
Federal private sector mandate. See 2 U.S.C. 1502(1) and 658(6).

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203.  The Instruction Manual contains the Department's procedures for
implementing NEPA and was issued November 6, 2014. Instruction Manual,
https://www.dhs.gov/ publication/
directive-023-01-rev-01-and-instruction-manual-023-01-001-01-rev-01-and-catex
(last updated Nov. 12, 2021).

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204.  40 CFR parts 1500 through 1508.

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

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206.   See Appendix A, Table 1.

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

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208.   See 5 U.S.C. 601 note.

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

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

BILLING CODE 9111-97-P

PUBLISHED DOCUMENT




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