Organizations: put your name on the record against the EAD rule.

AfghanEvac submits this comment on behalf of the undersigned organizations in opposition to the proposed rule identified above. The organizations joining this comment include legal service providers, refugee resettlement agencies, veteran service organizations, faith communities, employers, and other advocacy organizations. Together, we work directly with the populations this rule would affect, and we share a common interest in an employment authorization system that allows people who are lawfully present in the United States to support themselves and their families while their immigration cases are resolved.

This rule would most significantly affect three distinct categories of discretionary employment authorization: individuals paroled into the United States for urgent humanitarian reasons or significant public benefit under 8 CFR 274a.12(c)(11), individuals granted deferred action under (c)(14), and individuals released from custody on orders of supervision under (c)(18). Each of these categories already reflects a government determination that the individual should remain in the United States, whether through an affirmative grant of parole, a decision that removal is not a current priority, or a legal finding that removal cannot presently occur. This rule does not make the country safer. It makes it harder for people the government has already decided should stay here to support themselves while they do.

In addition, several provisions in the rule appear to reach much further, impacting most work permit holders, including other individuals applying for a work permit with pending asylum applications, renewing Deferred Action for Childhood Arrivals (DACA), or seeking protection under the Violence Against Women Act. Despite proposing significant changes to the work authorization of millions of workers in the U.S., the rule never clearly spells out which provisions apply to which work permit categories. This confusion makes it hard for the public to understand, let alone comment on, the full impact of the rule.

Furthermore, if numerous provisions in the rule apply more broadly beyond the three distinct categories outlined in the rule, the rule itself fails to accurately discuss the impact of those changes. As a result, the rule is incomplete in its analysis, and does not provide the public with accurate information about its impact.

The Rule Undermines Self-Sufficiency

Discretionary employment authorization exists so that individuals with a pending or provisional immigration status can support themselves rather than rely on public assistance or informal, unregulated work. The proposed rule replaces the current renewal standard across all three categories with a new discretionary test that gives adjudicators broad, largely unreviewable authority to deny otherwise qualified applicants. When renewal becomes uncertain, employers become reluctant to hire, promote, or invest in employees whose authorization may not survive the next cycle. The predictable result is fewer people working, not more people vetted.

The Rule Punishes Applicants for Government Delays

The proposed automatic termination provision ends an individual's employment authorization when the applicant's underlying benefit terminates, even where the benefit lapses only because USCIS failed to timely adjudicate a pending renewal application. Processing delays are the government's responsibility, not the applicant's. Tying an individual's livelihood to the government's own administrative performance does not serve the interests of the applicant, the employer, or the agency.

The Rule Creates Barriers Outside Applicants' Control

The proposed E-Verify employer requirement conditions renewal on whether an applicant is employed or seeking employment with an employer participating in a federal verification database, a decision made entirely by the employer, not the applicant. Many small businesses, nonprofits, and family-owned employers do not use E-Verify. An otherwise eligible applicant could therefore lose work authorization based on an employer's choices or status rather than anything related to their own eligibility, conduct, or vetting history.

The Rule Weakens Due Process

The proposed rule directs adjudicators to weigh arrests, not only convictions, in the discretionary determination, without a corresponding limit on how that factor is weighed. An arrest is an accusation, not a finding of fact. Using unproven allegations to deny work authorization, particularly with the limited avenue for appeal this rule provides, allows a permanent employment consequence to follow from a process that may never result in a charge, let alone a conviction.

Afghan Allies Illustrate the Real-World Consequences

The populations affected by this rule span many countries, communities, and circumstances, but the Afghan allies our coalition works with illustrate what these changes would mean in practice. Afghan nationals brought to the United States on humanitarian parole after the fall of Kabul in August 2021 fall squarely within the (c)(11) category this rule restricts. Many have been waiting years for their cases to be adjudicated, through backlogs that are the government's making, not their own. Their experience is representative, not exceptional. Across every category this rule touches, the individuals affected are people the government has already determined should remain here, now asked to prove themselves against a new and less certain standard.

Recommendations

We respectfully urge USCIS to:

• Withdraw the proposed rule in its entirety.
• Preserve the existing employment authorization renewal standards for the (c)(11), (c)(14), and (c)(18) categories.
• Eliminate the automatic termination provision as it applies to delays caused by USCIS processing.
• Remove the proposed E-Verify employer requirement.
• Limit discretionary determinations to convictions, rather than arrests or unproven allegations.
• Preserve, and where appropriate expand, employment authorization protections for individuals whose removal is not currently possible as a matter of law.
• To the extent DHS engages in further rulemaking, clearly state the changes the agency proposes to make to each category of employment authorization.

Respectfully submitted, AfghanEvac, on behalf of the undersigned organizations. Questions may be directed to Shawn VanDiver, President and Founder of AfghanEvac, at shawn@afghanevac.org.