The U.S. Department of Homeland Security (DHS) has published a new regulatory proposal to limit or restrict employment authorization eligibility from certain classes of aliens that are generally present in the country without any lawful immigration status. The new rule will impact aliens with parole, aliens with deferred action (not including Deferred Action for Childhood Arrival (DACA) recipients or applicants for T visas and their relatives), aliens who have been released but have received final orders of removal, and certain aliens with criminal histories. The comment period closes August 4, 2026—here’s what you need to know to advise clients and prepare for the fight.
What changed
The rule will limit employment authorization eligibility for aliens paroled into the United States temporarily and for aliens granted deferred action. To raise the standard for employment authorization eligibility, the rule will require these classes to demonstrate that they must work as a matter of economic necessity and that they warrant a positive grant of discretion by a USCIS officer before they can receive employment authorization.
The rule goes farther, however, to limit employment authorization for these categories to one year. After one year, the alien must reapply or seek a renewal. The rule will also require that employment authorization renewal applicants demonstrate that they are working for an employer that is enrolled in E-Verify or at least trying to work for a participating employer.
The rule would also add biometric requirements for any alien applying for employment authorization under 8 C.F.R. § 274a.12(c) (governing aliens who must apply for a discretionary work permit) and would require USCIS officers to deny a work permit application, as a matter of discretion, if it becomes known that the alien has been arrested, indicted, or convicted of any criminal act; admitted to committing a violent or dangerous crime; or if evidence exists that the alien is a member of a gang or terrorist organization. The rule preserves officer discretion to grant the application if “significant countervailing public interests” exist, such as the need for the alien to assist law enforcement activity in the United States.
Employment authorization would automatically terminate when an alien receives an administratively final order of removal under any removal provision (e.g., INA §§ 217, 235, 238, 240) or when the underlying basis for the work permit (e.g., parole or a pending asylum application) is terminated or denied. Aliens who believe that they have a separate basis for employment authorization will be required to reapply.
Why it matters
The scale of impact is enormous. Between FYs 2021 and 2024, USCIS granted 1,211,447 (initial and renewal) work permit applications to aliens with parole. Moreover, data obtained by the Center for Immigration Studies shows that USCIS approved 3,772,382 work permit applications between January 2021 and January 2025 to aliens with pending asylum applications and approved 366,843 work permit applications to aliens with deferred action.
For your clients, the new rule creates several immediate pressures:
Eligibility tightening: Current parole-based EAD grants have been largely automatic upon approval of parole status. Under the proposed rule, applicants must now affirmatively prove economic necessity and persuade a USCIS officer to grant favorable discretion—a fundamentally different standard that will reduce approvals and invite denials.
Shorter validity & frequent renewal: One-year limits mean clients must file renewal applications every 12 months instead of the current multi-year validity. Each renewal will trigger the economic-necessity and discretion review again, creating bottlenecks and timing risks if renewals are delayed.
E-Verify mandate for renewal: Renewals now require proof of employment with an E-Verify-enrolled (or actively-trying-to-enroll) employer. This locks clients into formal employment relationships and may exclude self-employed individuals, gig workers, or those between jobs.
Criminal history bar (broad): The rule does not limit the criminal bar to convictions or serious crimes. It covers arrests and indictments of any criminal act—meaning a 20-year-old arrest that was dismissed could trigger a mandatory-denial discretionary bar, even for DACA recipients (who are not exempt from the criminal history and biometrics rules under the proposed language).
Automatic termination on removal order: Once an administratively final removal order issues, EADs terminate immediately, leaving clients unable to work while appeal or stay-of-removal proceedings remain open.
Way forward
For practitioners with affected clients:
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Urgent audit: If you represent clients with parole or deferred action EADs, review their file now for any arrest history—even sealed, declined, or old arrests—and prepare advisory letters about the risk. The proposed rule’s criminal history bar is broad enough to jeopardize renewal eligibility.
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Preserve evidence of economic necessity: Begin documenting current employment, income need, and household dependence on client earnings. The proposed rule requires affirmative proof; circumstantial or back-of-the-envelope arguments will not survive USCIS review under the new discretionary standard.
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File renewals strategically: Any renewal currently pending or due before finalization of this rule should be filed now under the old standard. Once finalized, the rule will apply to all new filings.
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Comment on the proposed rule: The comment period closes August 4, 2026. Any member of the public can submit feedback, including support, opposition, or relevant policy alternatives, through regulations.gov by searching “DHS Docket No. USCIS-2026-0067”. Individual practitioners, law firms, employer groups, and worker-advocate organizations should submit detailed comments highlighting:
- Resource impacts of mandatory annual renewals
- Economic impact on lawful employers who rely on parole-based workers
- Overbreadth of the criminal history bar (e.g., disproportionate effect on communities of color)
- Feasibility of USCIS discretionary review timelines
Disclaimer
Fola Editorial is a software platform, not a law firm. This article explains agency policy and is not legal advice. Consult a licensed immigration attorney regarding your individual circumstances, filing strategy, and exposure under the proposed rule. This policy is not yet final and may change without notice. Always verify your obligations and client eligibility against the primary source documents (the Federal Register notice and final rule, once published) and current USCIS instructions.