DHS’ New Work Permit Measures Are Welcome Change with Potential to Address USCIS Challenges 

On September 20, 2023, the Department of Homeland Security (DHS) announced measures to accelerate the processing of some work permits and to extend their validity period for particular categories of individuals. These changes are substantial and are likely to have a meaningful impact on the large work permit backlog in the long run.

For the past few months, the calls for the Biden administration to do more to provide work permits to newcomers have been increasing. Under federal law, all U.S. employers must make sure their employees are legally authorized for employment. Without such authorization, noncitizens are locked out of the formal labor market. New York City Mayor Eric Adams, in particular, has used charged rhetoric to call on the federal government to speed up work authorizations for the nearly 60,000 migrants currently in his city’s shelters. Local officials in other cities have also called for federal assistance.

The Biden administration’s recent announcement is one step toward this goal. Beginning October 1, DHS will “dedicate additional personnel and implement improvements” to decrease the median processing times to 30 days for employment authorization documents (EADs) associated with migrants who entered through the Cuban, Haitian, Nicaraguan, and Venezuelan (CHNV) parole process or through the CBP One mobile app. According to Customs and Border Protection’s public information, over 211,000 individuals have arrived through the CHNV program and more than 241,000 through CBP One since January 2023. Currently, U.S. Citizenship and Immigration Services (USCIS) is processing 80% of the parole-based EAD applications in four months.

One particular problem is that migrants paroled into the U.S. through these processes have to affirmatively apply for work authorization. In its announcement, DHS acknowledged that “only a small percentage” of those paroled through CBP One have applied. According to the White House, that number is a shockingly low 16%.

In late August, DHS sent emails and text messages to about 1.4 million individuals, including CHNV and CBP One parolees as well as those with pending asylum applications, notifying them of their potential eligibility for a work permit. The White House estimated that about 20% of the noncitizens paroled through CBP One who indicated that New York, New Jersey, or Pennsylvania was their intended destination could be immediately eligible to work.

In addition, the Biden administration committed to sending personnel to New York to inform migrants about the process. Parole programs like Uniting for Ukraine and Operation Allies Welcome come with automatic employment authorization due to USCIS’ interpretation of recently passed laws providing those groups refugee-like benefits. Without the same support for the CHNV and CBP One parolees, DHS is largely limited to sending more reminder emails and text messages to get them to apply.

Asylum seekers who are not paroled through any program face particularly complex barriers to work despite their eligibility to request employment authorization. Putting aside the dearth of legal services that hinder asylum seekers’ ability to file an asylum application in the first place, a 1996 law requires those who have successfully applied to wait at least 180 days after filing to receive a work permit. To complicate matters, DHS’ regulations require these applicants to wait at least 150 days after submitting their asylum application to file for their work permit.

Currently, most initial work permits for asylum applicants are being processed within 60 days, but that was only after the American Immigration Council, Northwest Immigrant Rights Project, and other partners, sued USCIS in a yearlong lawsuit where the plaintiffs moved to hold the government in contempt three times because USCIS kept dragging its feet. Without this type of pressure, or additional resources from Congress, it’s unclear how DHS will reorganize its resources to “accelerate” the cited categories of work authorizations.

Adding more pressure to the backlog, the Biden administration recently announced the redesignation of Temporary Protected Status (TPS) that will benefit nearly 472,000 Venezuelans. Given legal constraints that limit TPS designations to up to 18 months, these folks will soon join the approximately 680,000 TPS holders who frequently depend on USCIS’ processing capacity to work.

In its announcement, DHS also indicated that, starting October 1st, it will extend the validity period for EADs from two years to five years for refugees, asylees and withholding of removal recipients as well as applicants for asylum, adjustment of status and cancellation of removal. The goal is to reduce the frequency these individuals will need to renew their EADs. This has the potential to have a significant impact on USCIS’ backlog. Currently, there are over 1.5 million work permit applications pending, which represent 17% of all pending applications at the agency. Out of those, 36% are renewals with asylum-based and adjustment of status-based EAD applications making up 43% of USCIS’ EAD workload.

Despite the potential benefits of these new initiatives, given the large number of work permit applications pending, one wonders—how will the federal government “accelerate the processing” of all these applications? As the Citizenship and Immigration Services Ombudsman referenced in that agency’s annual report, without additional funding and capacity, USCIS’ advancements in some areas have caused significant regression in others. 

One tool the Biden administration has been silent on is the Temporary Final Rule announced last year that increased the regulatory automatic extension for certain renewal EAD applications from 180-days to 540-days, which is set to expire on October 26, 2023. Given DHS’s intention of focusing on initial work permit applications for recent arrivals, an extension of this rule could help relieve pressure on USCIS, especially since the agency has other processing backlogs apart from work permits that it needs to address. 

The Biden administration’s new measures will have a significant and positive effect on reducing work permit waiting periods, which will benefit newly arrived migrants who want to be self-sufficient but who are locked out of the formal labor market. However, to truly eliminate the processing backlogs at USCIS, Congress will need to act as well and provide significant and recurring funding to that agency.

FILED UNDER: Department of Homeland Security, USCIS