USCIS Proposes to Narrow Discretionary Employment Authorization

 

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:

1. 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.
2. Deferred Action Recipients — Category (c)(14): Individuals who have been granted deferred action (a temporary hold on deportation) by DHS.
3. 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.)