The U.S. Department of Homeland Security (DHS) has published a Notice of Proposed Rulemaking (NPRM) that could significantly change eligibility requirements for certain discretionary Employment Authorization Documents (EADs). If finalized, the proposal would impose stricter eligibility standards, additional vetting requirements, and new discretionary factors that could affect many noncitizens who currently rely on work authorization to live and work in the United States.
The proposed rule is currently open for public comment through August 4, 2026, and has not yet taken effect.
What Is DHS Proposing?
According to DHS, the proposed regulation is intended to clarify and limit discretionary employment authorization for certain categories of noncitizens, including:
- Individuals granted deferred action;
- Certain humanitarian parole recipients;
- Individuals subject to final orders of removal who are temporarily released under orders of supervision; and
- Other categories that currently receive discretionary work authorization under existing regulations.
DHS states that employment authorization in these categories is discretionary and that the agency may deny applications where it determines that a favorable exercise of discretion is not warranted.
Criminal History Could Become a Major Factor
One of the most notable aspects of the proposal is the expanded focus on criminal history and public safety considerations.
Under the proposed rule, DHS would generally consider applicants ineligible for a favorable exercise of discretion if they:
- Have been arrested for certain criminal offenses;
- Have been charged or indicted;
- Have been convicted of certain crimes;
- Admit to committing a violent crime; or
- Are determined by DHS to have gang affiliations.
The proposal indicates that such applicants generally would not receive discretionary employment authorization unless significant countervailing public interests exist, such as cooperation with law enforcement activities.
Additional Vetting and Screening Requirements
The proposed regulation would also strengthen vetting procedures for individuals seeking discretionary work authorization.
Among the changes discussed in the NPRM are:
- Expanded biometric collection requirements;
- Additional criminal history screening;
- Enhanced eligibility reviews; and
- Increased scrutiny during both initial filings and renewals.
DHS has stated that these measures are intended to ensure that discretionary employment authorization is granted only when it aligns with public safety and immigration enforcement objectives.
Potential Impact on Deferred Action and Parole Recipients
The proposal may have substantial consequences for individuals who currently rely on discretionary EADs based upon deferred action or humanitarian parole.
Many individuals in these categories use employment authorization to support themselves and their families while awaiting immigration proceedings or other immigration benefits. If the rule is finalized as proposed, obtaining or renewing employment authorization could become significantly more difficult for some applicants.
The proposed rule may also affect certain renewal applicants through additional eligibility requirements and heightened discretionary review.
What Employers Should Know
Employers that rely on workers holding discretionary EADs should monitor this proposal carefully.
If finalized, the rule could result in:
- Delays in EAD adjudications;
- Increased requests for evidence;
- Additional compliance obligations;
- Changes in workforce authorization eligibility; and
- Greater uncertainty for employees seeking EAD renewals.
Human Resources professionals and employers may wish to review workforce planning strategies and stay informed about future DHS announcements regarding this proposed rule.
Public Comments Are Being Accepted
Because this is a proposed regulation, it is not currently in effect.
DHS is accepting public comments on the proposal through August 4, 2026. Following the comment period, the agency will review submissions before deciding whether to issue a final rule, modify the proposal, or withdraw it.
Contact NPZ Law Group
The proposed changes to discretionary employment authorization could affect individuals with deferred action, humanitarian parole, orders of supervision, and other immigration classifications that rely on discretionary EAD eligibility.
If you have questions about employment authorization, EAD renewals, deferred action, parole-based immigration benefits, or other U.S. immigration matters, the attorneys at NPZ Law Group can assist you in evaluating your options and understanding how proposed regulatory changes may affect your case.
FAQ
Has this rule taken effect?
No. DHS has only published a proposed rule. The regulation is currently open for public comment and is not yet final.
When is the deadline to submit comments?
Comments must be submitted by August 4, 2026.
Who could be affected by the proposal?
The proposal primarily targets certain discretionary EAD categories, including some parole recipients, deferred action recipients, and individuals released under orders of supervision.
Could criminal history affect EAD eligibility under the proposal?
Yes. DHS proposes to consider arrests, charges, indictments, convictions, admissions of certain violent crimes, and gang affiliations as significant negative discretionary factors.
Will USCIS automatically deny all affected applications?
Not necessarily. The proposal preserves discretionary review and discusses circumstances where significant public interest factors may justify a favorable exercise of discretion.
Contact Information
If you or your family members have any questions about how immigration and nationality laws in the United States may affect you, or if you want to access additional information about immigration and nationality laws in the United States or Canada, please do not hesitate to contact the immigration and nationality lawyers at NPZ Law Group. You can reach us by emailing info@visaserve.com or by calling us at 201-670-0006 extension 104. We also invite you to visit our website at www.visaserve.com for more information. Nachman, Phulwani, Zimovcak (NPZ) Law Group, P.C. – VISASERVE.