On June 5, 2026, DHS published a notice of proposed rulemaking that would significantly narrow employment authorization eligibility for three groups of noncitizens: those paroled into the U.S. for urgent humanitarian reasons or significant public benefit, recipients of deferred action, and individuals with final removal orders temporarily released on supervision. The proposed changes will affect how you advise clients in each of these categories and reshape the discretionary analysis USCIS applies during employment authorization review.
What changed
DHS proposes to limit and clarify eligibility for discretionary employment authorization for aliens paroled temporarily for urgent humanitarian reasons or significant public benefit, and for deferred action recipients. It also proposes to eliminate, with one narrow exception, discretionary employment authorization eligibility for aliens with final removal orders temporarily released from custody on an order of supervision.
Applicants who admit to, have been arrested for, or have been convicted of certain criminal acts would not warrant a favorable discretionary finding unless there are significant countervailing public interests, which may include assisting law enforcement.
To qualify for employment authorization, applicants would generally need to demonstrate economic necessity, submit biometrics for background screening, have no disqualifying criminal history, and show no gang or criminal organization affiliation.
DHS also proposes to add automatic termination conditions for employment authorization with triggering events.
The comment period for the proposed rule closes on August 4, 2026. Comments can be submitted via Regulations.gov.
Why it matters
This proposal substantially tightens the “warrant a favorable exercise of discretion” standard that currently permits USCIS to grant employment authorization to parolees and deferred action recipients. Currently, USCIS may use discretion more liberally; under this proposal, the burden shifts to applicants to affirmatively establish eligibility through economic need and clean background screening.
For parolees and deferred action beneficiaries, you can no longer rely on a general request for employment authorization. Your client packets will need to include documentation of economic hardship, proof of employment offers or business plans, and thorough background submissions. Criminal history—even arrests without conviction—now becomes a potential bar to approval.
The elimination of employment authorization for removal cases with one narrow exception is the sharpest change. If your client has a final removal order and was released on supervision pending deportation, employment authorization will effectively become unavailable in most scenarios.
Automatic termination triggers (not yet detailed in the public inspection text) may also shorten the validity period of approved work permits, requiring closer attention to expiration and renewal timing.
Way forward
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Immediately file pending cases. If you have employment authorization applications pending for clients in these three categories, prioritize submission before the rule finalizes. Grandfathering provisions, if any, have not yet been announced.
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Monitor the comment period. The rule is open for public comment through August 4, 2026. Organizations representing immigrant communities and employers will likely submit substantive comments; review them for developments that may affect your filing strategy.
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Gather economic documentation now. For parolees and deferred action clients, begin assembling evidence of economic necessity—tax returns, job offer letters, lease agreements, and household budget documentation—to support discretionary applications.
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Conduct comprehensive background reviews. Any arrest, even without conviction, may trigger unfavorable discretion under the proposal. Screen your clients thoroughly and advise them of potential disqualifications before they file.
Disclaimer
This article is provided for informational purposes only and does not constitute legal advice. Fola is not a law firm, and nothing in this article should be construed as legal counsel or a recommendation to take any particular action. Immigration law is complex and highly fact-specific. You must verify all information against the primary source document and consult with a licensed immigration attorney before advising any client or making any filing decisions. Policy can change without notice, and agency practices may vary by office or over time.