Introduction
On June 5, 2026, the U.S. Department of Homeland Security
(DHS) published a significant proposed rule titled "Clarification
of Discretionary Employment Authorization for Certain Aliens" (DHS
Docket No. USCIS-2026-0067, RIN 1615-AC98). The proposal represents
one of the most consequential changes to employment authorization (EAD) policy
in recent years, as it seeks to substantially limit USCIS's authority to grant
discretionary work authorization to many categories of noncitizens.
According to DHS, the proposal is intended to align
employment authorization regulations more closely with the Immigration and
Nationality Act (INA) by limiting discretionary employment authorization to
categories that Congress has expressly authorized or clearly contemplated. If
finalized as proposed, the rule would eliminate or significantly restrict
eligibility for employment authorization for several groups of noncitizens who
currently may apply for Employment Authorization Documents (EADs) under existing
regulations.
Major Proposed Changes and Affected Individuals
The proposed rule argues that existing regulations have
expanded discretionary employment authorization beyond what Congress intended
under the INA. DHS therefore proposes to revise 8 C.F.R. § 274a.12 to narrow
the categories of individuals eligible for discretionary employment
authorization.
In practical terms, DHS proposes to preserve employment
authorization where the INA explicitly authorizes it, while removing or
limiting eligibility for categories that exist primarily through agency
regulation rather than express statutory authorization.
Individuals Who May Be Affected
The proposal specifically covers three Employment
Authorization Document (EAD) categories:
- Parolees
— Category (c)(11): Individuals paroled into the United States
temporarily for urgent humanitarian reasons or significant public
benefit. This includes groups of nationals who arrived through
specific parole programs.
- Deferred
Action Recipients — Category (c)(14): Individuals who have been
granted deferred action (a temporary hold on deportation) by DHS.
- Orders
of Supervision (OSUP) — Category (c)(18): Individuals who have
received a final order of removal but are temporarily released from
custody under an order of supervision because removal is impracticable
(often because their home country refuses to issue travel documents or
accept them).
Exemptions
It is important to note that DHS has explicitly stated this
proposed rule does not apply to:
- Deferred
Action for Childhood Arrivals (DACA) recipients (category c33)
- T visa
applicants (victims of human trafficking)
- Individuals
granted deferral of removal under the Convention Against Torture (CAT)
Proposed Requirements for Covered Categories
For applicants falling under the (c)(11), (c)(14), and
(c)(18) categories, the proposal introduces significant restrictions to
receiving and renewing an EAD:
- Economic
Necessity: Applicants would generally have to provide financial
data proving they have a financial need to work.
- Criminal
History Bar: Discretionary EADs would generally be denied to
anyone with a criminal history—including those arrested, charged, or
convicted of criminal acts, or found affiliated with a gang or terrorist
organization.
- Mandatory
Biometrics: All discretionary EAD applicants would be required to
submit fingerprints and biometric data for an FBI background check.
- E-Verify
Mandate: To qualify or renew, the applicant must demonstrate they
are employed (or will be employed) by a business enrolled in the federal
E-Verify system.
- One-Year
Validity: EADs issued under these categories would be restricted
to a maximum validity period of one year.
The proposal reviews numerous regulatory provisions under 8
C.F.R. § 274a.12 and proposes eliminating or revising additional discretionary
employment authorization categories that DHS believes exceed its statutory
authority.
Current Status and Effective Date
It is important to emphasize
that this is only a proposed rule. DHS published the Notice of
Proposed Rulemaking (NPRM) on June 5, 2026. The proposal is undergoing the federal
rulemaking process. Members of the
public, employers, attorneys, advocacy organizations, and other stakeholders
have had the opportunity to submit public comments through Regulations.gov. DHS must review the submitted comments before
deciding whether to publish a Final Rule.
DHS may modify, narrow, or withdraw portions of the proposal after
considering public feedback.
Recommendations for Affected Individuals
Although no immediate action is required solely because the
proposal has been published, affected individuals should consider taking
proactive steps.
1. Do Not Assume Current Rules Will Continue
Individuals relying on discretionary employment
authorization should monitor developments closely. Regulatory proposals can
change during the rulemaking process, but they may also become final with
relatively short implementation periods.
2. Maintain Underlying Immigration Status Whenever
Possible
Where feasible, maintaining a valid nonimmigrant status that
independently authorizes employment may provide additional protection if
discretionary EAD eligibility is narrowed in the future.
3. File Eligible Applications Promptly
Individuals who are currently eligible for employment
authorization under existing regulations should consult with immigration
counsel regarding the timing of EAD applications or renewals while current
rules remain in effect.
4. Monitor Official USCIS Announcements
Only a Final Rule published after completion of the
notice-and-comment process can change the current regulations. Until then,
existing eligibility requirements remain unchanged.
5. Seek Individual Legal Advice
Because the proposal affects different immigration
categories in different ways, individuals should consult an experienced
immigration attorney before making employment or immigration decisions based on
the proposed rule.
(Immigration laws and policies change regularly. If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)
