ILAP Public Comment: Work Permit Automatic Extensions
Submitted via regulations.gov.
RE: DHS DOCKET NO. USCIS–2024–0002, TEMPORARY INCREASE OF THE AUTOMATIC EXTENSION PERIOD OF EMPLOYMENT AUTHORIZATION AND DOCUMENTATION FOR CERTAIN EMPLOYMENT AUTHORIZATION DOCUMENT RENEWAL APPLICANTS
Dear Chief Nimick,
The Immigrant Legal Advocacy Project (ILAP) respectfully submits the following comments in response to the U.S. Citizenship and Immigration Services (USCIS) request for comments on the Temporary Increase of the Automatic Extension Period of Employment Authorization and Documentation for Certain Employment Authorization Document (EAD) Renewal Applicants, 89 Fed. Reg. 24628 (Apr. 8, 2024) (to be codified at 8 C.F.R. pt. 274a) (DHS Docket No. USCIS–2024–0002).
ILAP is submitting these comments with key public interest goals including that no immigrants lose income or jobs due to government processing delays, no Maine employers lose their workers, and limited government and nonprofit organization resources are maximized. We call on the government to (1) issue a longer and permanent automatic work permit extension period that covers all eligible workers; and (2) ensure that it can process work permit renewal applications for all other immigrants in danger of losing jobs and income due to processing delays, including Deferred Action for Childhood Arrivals (DACA) recipients. We are responding to the three relevant questions asked by USCIS in the temporary final rule, as well as suggesting other changes that USCIS should make before finalizing the rule in order to keep immigrant workers in the formal workforce.
I. About ILAP and Interest in Proposed Changes:
ILAP is Maine’s only statewide immigration legal services organization, serving more than 1,000 people seeking asylum in Maine each year through direct representation, pro bono coordination, pro se forms assistance, and workshops. In addition to asylum applicants, ILAP provides immigration legal services to an additional 2,000 people each year including vulnerable immigrant children, survivors of domestic violence and trafficking, and people pursuing other forms of humanitarian protection.
Through our practice over the last 30 years and our longstanding community partnerships, ILAP has deep understanding and expertise of how crucial access to work permits and lack of gaps in work authorization is in stabilizing individuals, families, communities, and providing vast economic benefits in Maine and beyond. According to a recent study by the U.S. Chamber of Commerce, Maine is facing unprecedented staffing shortages, with just 54 workers available for every 100 open jobs.¹ The Chamber rates Maine’s labor shortage in the “most severe” category.² Delays at USCIS that impact access to work permits have a profound ripple effect on states like Maine where thousands of asylum seekers and other immigrants are arriving annually seeking to support themselves and build their lives here while businesses are shuttering their doors for lack of workers.
II. Comments:
ILAP applauds USCIS for issuing this automatic extension of work permits to keep 800,000 immigrant workers in the formal economy, including many here in Maine. In response to the questions posed by USCIS in the temporary final rule, ILAP respectfully recommends the following solutions to protect immigrant workers, their families, employers, and communities.
A. DHS Should Revise Its Regulations to Permanently Lengthen the Automatic Extension Period to 540 Days for All Eligible Renewal Applicants.
While ILAP commends USCIS for issuing this temporary rule, it is clear that this extension does not fully address the issue it purports to address. This is the second temporary rule that USCIS has had to issue in less than two years to ensure eligible renewal applicants do have gaps in work authorization due to government processing delays. Furthermore, there is no reason to believe USCIS will not have to issue a third temporary rule when this rule expires. Respectfully, there is not a clear plan for fully eliminating the work permit processing backlog within the next two years and USCIS should change its regulation to permanently lengthen the automatic extension period to 540 days (or 730 days), providing stability to immigrant workers and employers alike.
USCIS should make this regulation permanent to ensure immigrant workers do not lose work authorization in 2026. USCIS has an obligation to process work permit applications received 90 days before an individual’s work permit expires.³ After October 2025, USCIS will revert to the 180-day work permit extension.⁴ In April 2026, individuals who received a 180-day work permit extension after October 2025 would lose their work authorization if backlogs persist.⁵ DHS has not indicated that USCIS will have fully addressed the work permit backlogs by April 2026, and thus, should make the longer extension permanent.
Immigrant workers — and their families and communities — benefit from a permanent 540-day (or longer) extension because it gives them longer-term stability by mitigating potential lapses in work authorization after the temporary extension expires. Having a permanent extension of 540 days (or longer) would prevent loss of incomes and jobs that can have cascading negative effects on families and communities when people are no longer able to meet their basic needs.
Similarly, employers benefit from the stability and clarity that a permanent change to the automatic extension would provide. Since 2021, employers across the country have dealt with the stress and risks of employing individuals whose work authorization lapsed, or was on the verge of lapsing.⁶ In some cases, employers lost critical immigrant workers due to lapsing work authorizations.⁷ By making the extension 540-day (or longer) autoextension permanent, the business community would know that their employees will be less likely to lose work authorization due to processing backlogs and it will give them confidence and more options to recruit and invest in immigrant workers. Furthermore, having a permanent 540-day (or longer) extension would alleviate human resources burdens on businesses – particularly small businesses – as they would not have to track and make contingency plans for workers with different length automatic work permit extensions.
B. DHS Should Increase the Auto-Extension to 730 Days For All Eligible Applicants.
USCIS estimates that despite the 540-day extension, about 260,000 applicants are still at risk of losing their work authorization.⁸ This means the 540-day extension is not long enough. These workers will lose income, jobs, access to medical care, ability to meet basic needs for themselves and their families, risk homelessness, and it will severely impact the industries they work in and communities they live in. Families, employers, and local communities rely on these 260,000 immigrant workers. We strongly urge the agency to prevent this crisis from happening and to protect these 260,000 immigrant workers and their employers by revising its regulations to increase the automatic extension period to 730 days for all eligible applicants.
All individuals who have received the automatic extension through this temporary final rule should receive a 730-day extension. This should also include lengthening the work permit extension to 730 days for those immigrants who previously received a 540-day extension under the 2022 temporary final rule. This would create unified guidance for employers and individuals while ensuring that immigrant workers do not fall out of the workforce due to processing delays.
It would hurt the economy, businesses, and local communities for 260,000 immigrant workers to fall out of the workforce due to processing backlogs. Immigrant workers are key to the success of many industries, including construction, medicine, technology, and trucking, which have been essential to boost our economy. A longer extension means that employers will be able to keep 260,000 immigrants employed and will minimize disruption to industries already struggling with labor shortages.
Finally, 730-day autoextensions would eliminate additional paperwork and bureaucratic burdens on the agency as it is looking for ways to streamline. The broadest possible 730-day autoextension would be cost effective for USCIS, mitigating the need for unnecessary work permit adjudication, additional proposed rules, comment periods, agency review, and more. Relatedly, this eliminates burdens on organizations like ILAP working to serve immigrant clients impacted by processing delays, helping us to focus our resources on longer-term stability options for clients.
C. USCIS Should Create Mechanisms to Help Immigrant Workers Stuck in Backlogs who do not Benefit from the Work Permit Extension, including DACA Recipients.
Not all immigrant workers will benefit from this current work permit extension. For example, DACA recipients, and individuals who apply for a work permit renewal after their work authorization has expired, are not covered by this rule. This includes dozens of DACA recipients who are Maine residents.⁹ In a series of interviews ILAP conducted with Maine DACA recipients in 2022, we spoke to a young woman working her way through nursing school and a young man working in construction.¹⁰ Maine cannot afford to lose these vital and talented members of our workforce due to government processing delays. Furthermore, the rule states that approximately 260,000 immigrant workers may fall out of the workforce because the 540-day extension will not be enough to ensure their work permits are processed before expiring.¹¹ We respectfully implore USCIS to prioritize processing work permit applications so that no immigrants in Maine or elsewhere lose income or their jobs as a result of processing backlogs.
The rule contemplates creating technology to adjudicate work permit applications in the order in which individuals’ work permits will expire, stating it will take one year to build.¹² We recommend that DHS mitigate the risk of immigrants losing their work authorization by: (1) immediately creating a mechanism for immigrant workers to identify themselves to USCIS and seek expedited adjudication if they have a work permit that will expire in less than 30 days; and (2) building technology to identify and adjudicate applications based on their expiration date long-term.
Employers would also greatly benefit from this mechanism and new technology. If USCIS implements these systems, fewer employees will lose their work authorization due to processing delays, reducing disruptions in the work force. Businesses who employ applicants ineligible for the work permit extension would especially benefit from new systems that help workers to stay on the job without interruption.
III. Conclusion:
ILAP urges the agency to prioritize the following solutions to ensure that no immigrant workers lose work authorization due to work permit renewal processing delays. First, this regulation should be permanent. Second, USCIS should uniformly increase the auto-extension to 730 days to prevent 260,000 immigrants from falling out of the workforce due to processing delays. Last, USCIS should use and invest in creating mechanisms to prioritize identifying and processing work permit applications for all individuals whose work permits are about to expire.
Thank you for your consideration of our comments. For any questions, please contact ILAP’s Policy Director, Lisa Parisio, at lparisio@ilapmaine.org.
Sincerely,
Sue Roche, Esq.
ILAP Executive Director
¹ Lindsay Cates and Stephanie Ferguson, Understanding America’s Labor Shortage: The Most Impacted States, U.S. Chamber of Commerce (May 2, 2024), www.uschamber.com/workforce/the-states-suffering-most-from-the-labor-shortage?state=me.
² Id.
³ 8 C.F.R. pt. 208.7(d).
⁴ 89 Fed. Reg. at 24629.
⁵ We recognize that the number of renewal applications are set to decrease significantly between April 2025 and March 2028, due to the switch to five-year work permits for many categories of immigrants. See 89 Fed. Reg. at 24640. However, without a permanent rule, those who do not fall into the five-year categories are likely to start experiencing lapses in employment in April 2026; this population of immigrants experiencing lapses will increase when five-year work permits are also up for renewal in 2028.
⁶ Michelle Hackman, Immigrants to Get Extension for Expiring or Expired U.S. Work Permits, Wall St. J. (May
⁷ Rafael Bernal, Biden Extends Some Immigrant Work Permits, Potentially Saving Thousands of Jobs, The Hill (Apr. 4, 2024), https://thehill.com/latino/4573404-biden-immigrant-work-permits/.
⁸ 89 Fed. Reg. at 24655.
⁹ Active DACA Recipients, USCIS (2022), https://www.uscis.gov/sites/default/files/document/data/Active_DACA_Recipients_Sept_FY22_qtr4.pdf.
¹⁰ Decade of DACA, ILAP (2022), https://ilapmaine.org/daca-10.
¹¹ 89 Fed. Reg. at 24647 n.193.
¹² 89 Fed. Reg. at 24643.