On June 05, 2026, the Department of Homeland Security (“DHS”) published a Notice for Proposed Rulemaking entitled “Clarification of Discretionary Employment Authorization for Certain Aliens.” If finalized, the rule will affect eligibility for employment authorization (EADs) of certain immigrants and nonimmigrants.
What are the key changes being proposed and who do they apply to?
- Requirement for submission of biometrics for all discretionary EADs.
The proposed rule requires biometrics for all discretionary EAD applicants. Over the past year, USCIS has already been issuing many I-765 Request for Evidences for biometrics, and this rule would formalize that practice.
- DHS will generally not exercise favorable discretion for individuals with a criminal history.
Under the proposed rule, DHS would generally not exercise favorable discretion to grant EADs to individuals who have been arrested, charged without disposition, indicted, or convicted of a criminal offense. This would also apply to individuals who admit to committing a dangerous crime or are found to have been members of a gang or terrorist organization. DHS may still consider significant countervailing public interests, such as the need for the individual’s presence in the United States to assist law enforcement.
Additionally, DHS states that it generally will not favorably exercise a grant of employment authorization to individuals with expunged or sealed records in which a deal was made that imposes a form of punishment, penalty, or restraint on liberty.
- Automatic Termination of EADs when the underlying basis is terminated or final order of removal is issued.
The proposed rule will require all EADs to be automatically terminated in cases where the underlying basis is terminated or denied. EADs will also be automatically terminated if a final removal order has been issued for the individual.
- Requirement to establish economic necessity and good standing while working for employers with E-Verify.
Parolees and deferred action recipients will be required to establish an economic necessity for employment. Furthermore, they will be required to establish that they have been in good standing while working for an employer that possesses E-Verify.
According to DHS, this requirement is not applicable for DACA and T status holders.
- Restricting EAD validity period to one year.
The proposed rule will impose a one-year validity period for EADs issued to individuals on an order of supervision, parolees, and deferred action recipients. This would not apply to DACA recipients.
- Restricting employment authorization for individuals released on an Order of Supervision.
The rule would also restrict employment authorization for individuals subject to a final order of removal who are temporarily released from custody. To qualify, the individual must show that removal is impracticable because the countries from which DHS requested travel documents did not issue them.
The rule would also require that employers who employ individuals in this category must have E-Verify.
When would this rule go into effect?
DHS has requested that all comments on the proposed rule be submitted by August 04, 2026. We expect the finalized version to be published soon after.
If you have questions about how this proposed rule may affect your eligibility for employment authorization or your immigration status, the experienced business immigration attorneys at Murray Osorio PLLC are here to help. Call (800) 929-7142 or contact us online today to schedule a consultation.