Homeland Security has drafted a new proposal that would allow some unauthorized immigrants living in the U.S. to hold jobs for up to five years, more than twice the current limit, according to documents seen by The Washington Times.
The change would apply to people who jumped the border and then filed asylum claims to try to prevent their deportation, as well as to people seeking to win legal permanent residency, also known as a green card.
Currently the maximum time for a work permit, officially dubbed an Employment Authorization Document, is two years. U.S. Citizenship and Immigration Services said moving to five years would be more efficient for everyone involved.
“In the interest of reducing the burden on both the agency and the public, USCIS is revising its guidance to increase the maximum EAD validity periods for these categories,” the agency said in a policy alert being circulated along with the draft changes to USCIS’s policy manual.
But Robert Law, the former chief of policy at the agency in the Trump years, said the changes create bizarre incentives, including elevating some illegal immigrants to more work status than legal guest-workers, such as holders of the high-skilled H-1B visa.
It also could become a shield against deportation, said Mr. Law, who is now director of the Center for Homeland Security and Immigration at the America First Policy Institute.
“The Biden administration is punting problems down the road by covertly extending the validity of discretionary work permits,” he said. “This blatantly political move is designed to protect illegal aliens from removal when the next America First president enters the White House in 2025.”
The draft document reviewed by The Times is undated and doesn’t indicate when a decision could be made on issuing it.
Neither USCIS nor Homeland Security provided on-the-record comment for this story.
Emilio Gonzales, who ran USCIS in the Bush administration, said the draft is the latest in a series of Biden administration plans to accommodate illegal immigrants.
“All these guys want to do is get them in the country and when they get them in the country they will bend every rule and policy to keep them here,” Mr. Gonzalez said. “I believe this to be a deliberate policy.”
Work permits are at the heart of the immigration controversy, since most illegal immigrants come in search of jobs.
While many work without permits, those that can get permits say they lead to better wages and job security, and they help migrants entrench more deeply in their communities. Immigration agents also use work permits as a proxy for legal status.
Under the law, illegal immigrants who make asylum claims can apply for work permits 150 days after they file their asylum applications.
Opponents say it serves as a magnet for more people to make bogus asylum claims, which can take years to go through the courts. Defenders say it’s a way to ensure the migrants become self-sufficient and can live and work here while their cases are winding their way through immigration courts.
Homeland Security’s draft proposal would also apply to migrants with pending applications for “adjustment of status” — usually someone seeking to gain permanent legal residency, or a green card, from within the U.S.
In the second quarter of fiscal year 2023, which ran from Jan. 1 to March 30, some 281,028 asylum-seekers applied for work permits, as did 147,143 migrants seeking adjustment of status. Another 447,730 applications were submitted for other categories.
That works out to a total of more than 875,000 work permit applications in just those three months.
By contrast, during the same three months in 2018 under the Trump administration, just 382,278 work permit applications were filed. In 2019 it was 386,415. In 2020, after the 2019 border surge, it was 520,023.
In 2021, with President Biden in office, applications in the comparable first three months of the year surged to 693,092., and last year it was 597,341.
Extending the validity date means that migrants in the affected categories, who right now must renew their permits every two years, would only have to return every five years.
USCIS’s ombudsman, in its 2023 annual report, called work permits a “pain point” and the “most known bottleneck of the agency.”
As of March 31, the agency had more than 1.5 million applications pending for work permits.
The ombudsman said the agency has taken steps to ease the pain, including a new regulation issued last year that automatically extended some work permits that were about to expire because of the agency’s backlog. That covered more than 400,000 migrants.
The ombudsman said USCIS should renew the automatic extensions until it can solve the backlog.
The draft policy on five-year eligibility could be another solution — though it’s not without controversy.
Rosemary Jenks, vice president at NumbersUSA, said the proposal could ease the workload at USCIS, but could also lead to situations where illegal immigrants use the permits to prevent deportation.
She suggested a case where someone is seeking asylum, gets a 5-year work permit, but a year later loses her asylum case. That person could have an incentive to stay, relying on the work permit as permission to remain.
The expanded work permits will also serve as a magnet for more illegal immigrants, Ms. Jenks said.
“Guess what the result will be when they start calling home and saying ‘Hey, I’ve got a 5-year work permit? All of their relatives, friends and family will come,” she said.
Mr. Law said the move will also deprive USCIS of cash at a time when the agency admits it is in serious financial straits. The government right now charges $410 for the work permit.
If people need to apply 60% less often, that means less income.
“You’re going to be depriving the agency of fees by extending that validity period,” he said.
The Times asked USCIS how much revenue would be lost under the draft proposal. The agency did not respond to that question.
