November 29, 2023

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Non-Citizens’ Work Permits Extended in Rule Aimed at Backlog (1)

4 min read

The Department of Homeland Security will temporarily expand the automatic extension period for certain applicants seeking to renew employment authorization documents to a year and a half in draft regulations released Tuesday.

The rule was announced in March as part of a trio of measures U.S. Citizenship and Immigration Services, a unit of DHS, is adopting to address major backlogs and wait times for benefits.

Non-U.S. citizens, including green card applicants and asylum seekers, are entitled to work eligibility in the U.S., but processing delays have forced some out of jobs as they wait for required employment authorization documents to be renewed. Most immigrants renewing work authorization are eligible for 180-day extensions after their eligibility expires. The regulations will increase that extension period to 540 days.

“As USCIS works to address pending EAD caseloads, the agency has determined that the current 180-day automatic extension for employment authorization is currently insufficient,” said USCIS Director Ur Jaddou in a statement. “This temporary rule will provide those noncitizens otherwise eligible for the automatic extension an opportunity to maintain employment and provide critical support for their families, while avoiding further disruption for U.S. employers.”

Multiple class actions have been filed against USCIS in recent years over the processing delays. Asylum seekers, spouses of high-skilled workers, and foreign students pursuing Optional Practical Training have all brought class actions over processing times for the work documents.

Workforce Dilemma

DHS estimates that 87,000 renewal applicants are currently past, or soon will be past, the existing 180-day automatic extension period.

The increased extension period will be available to any applicant with a renewal of work authorization form pending as of May 4, and any applicant who files to renew work eligibility by Oct. 23, 2023. That will mean fewer workers terminated from jobs because of work authorization gaps and more capacity at USCIS to process other benefits.

“Many companies with staffing issues have let good workers go simply because of these significant processing backlogs, exacerbating their workforce problems,” said Jon Baselice, vice president of immigration policy at the U.S. Chamber of Commerce. “This policy will help companies meet their workforce needs by not only preventing similar business disruptions in the near future, but it will also allow companies to bring critical talent back onto their payrolls.”

The rule doesn’t address waiting periods for applicants seeking initial approval for work authorization or Deferred Action for Childhood Arrivals recipients, who have also faced gaps in employment because of expired documents.

Gabriel Pedro, a Russian-born asylum seeker in San Francisco, was forced to go on leave from his job at Inc. in December after the 180-day extension of his work authorization ran out, he told Bloomberg Law. He waited nearly four months for his work permit to renew while he and his wife got by on one income.

Pedro is a member of the Asylum Seeker Advocacy Project, which sued DHS over wait times last year.

“It was so hard to understand why it takes so long,” said Pedro, who is now employed as a software engineer at Airbnb Inc. “Probably the biggest challenge is that it’s unknown when you’re going to see the card.”

‘Band-aid’ Solution

Financial challenges exacerbated by the Covid-19 pandemic have hampered the ability of USCIS to deal with a large influx of work authorization applications. The agency said the time frame established by the rule will give the agency space to add staff and adopt efficiencies to meet new target processing times.

USCIS had a pending caseload of more than 8.4 million forms, according to data released for the first quarter of fiscal 2022—including more than 1.5 million pending employment authorization documents.

“It’s sort of a band-aid solution,” said Lily Axelrod, an attorney at Siskind Susser PC. “USCIS needs to be thinking of creative solutions to reduce its workload, not just give themselves an excuse to take even longer than they already do.”

Axelrod’s firm helped to bring a class action last year over wait times for work authorization affecting green card applicants. The Biden administration has filed a motion to dismiss the case.

The extended work authorization would offer some peace of mind to clients who would now not be forced to stop working because of something outside their control, said Emily Neumann, an attorney at Reddy & Neumann. But USCIS also could take steps to address the underlying issues, like reducing the number of immigration categories that require separate work authorization applications, she said.

“They’re buying more time to complete these applications that are still pending,” she said of the extensions for work permit renewals. “They’ll still have to get to them at some point.”


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