Markey Joins Warren, 6 Senators in Asking Department of … – Ed Markey

Text of Letter (PDF)

Washington (November 2, 2023) – Senator Edward J. Markey (D-Mass.) joined Senators Elizabeth Warren (D-Mass.), Tammy Duckworth (D-Ill.), Ben Ray Luján (D-N.M.), Peter Welch (D-Vt.), Richard Blumenthal (D-Conn.), Mazie Hirono (D-Hawaii), and Bernie Sanders (I-Vt.) in sending a letter to Secretary of the Department of Homeland Security (DHS) Alejandro Mayorkas and U.S. Citizenship and Immigration Services (USCIS) Director Ur Jaddou, commending DHS for the steps it has taken to expand access to employment authorization documents (EADs) for eligible noncitizens, and laying out several policy proposals to help address issues with EADs. 

“Expediting EADs for eligible individuals is essential to allowing new arrivals to enter the formal labor market, gain financial independence, and better support themselves and their families. We represent states that are fully committed to welcoming new arrivals. And we are working to pass long-overdue reforms to our immigration system, including bipartisan legislation to shorten the statutory 180-day waiting period before asylum seekers can obtain an EAD. But to ensure that all eligible individuals receive employment authorization in a timely manner, we ask that the administration make critical policy fixes to eliminate unnecessary barriers preventing new arrivals from working legally even when they should be eligible to do so,” wrote the senators. 

Too often, new arrivals who are eligible to receive authorization to work in the United States encounter obstacles and delays in doing so. Asylum seekers are delayed by the statutory 180-day asylum EAD clock, which requires them to wait a minimum of 6 months after submitting an asylum application before they can be issued an EAD. Many asylum seekers and other noncitizens are further delayed by the processing backlog of USCIS: some wait upwards of 12-18 months for their EAD applications (Form I-765) to be processed due to USCIS’s backlog of nearly 1.6 million unprocessed EAD applications. New arrivals also often face delays in even entering the pipeline to seek an EAD due to barriers to submitting their applications, including cost and language barriers, among others; only 16% of work-eligible CBP One app parolees had even applied for work authorization as of late August 2023. 

“The Department has significantly shortened wait times over the past year and recently committed to further shortening certain wait times. For example, for asylum seekers’ initial work permit applications, the median EAD processing time dropped from nine months in FY2022 to two months in FY2023, and USCIS is working to reduce EAD wait times for certain parolees from 90 days to 30 days,” continued the senators. 

However, the senators noted that additional action to fix the EAD system is necessary. They proposed several other critical fixes to the EAD crisis that DHS can implement without congressional action. The senators suggested a set of proposals that would help to: (1) facilitate speedier submission of EAD applications (including by reducing the number of new arrivals subject to the asylum EAD clock), (2) reduce the number of new arrivals who must file EAD applications at all, (3) authorize certain new arrivals to work while their applications are being processed, and (4) expedite USCIS’s processing of EAD applications.

The senators laid out six urgent priorities that DHS could implement now, without the need for notice-and-comment rulemaking: 

1. Issue provisional employment authorizations to eligible new arrivals who submit EAD applications. 
2. Continue the 540-day automatic extension period for EAD renewals.
3. Eliminate the EAD application filing fee for certain parolees. 
4. Increase USCIS’s access to information already collected from new arrivals by U.S. Customs and Border Patrol (CBP), to eliminate redundancies. 
5. Make the I-765 and the corresponding instructions simpler, clearer, and available in other languages (including Spanish and Haitian Creole). 
6. Ensure that applicants for Temporary Protected Status (TPS) receive timely adjudication of their prima facie eligibility and are issued the corresponding EADs while their TPS applications are pending.

The senators then laid out additional proposals, some of which would require rulemaking or additional exploration: 

1. Automatically authorize certain parolees to work incident to parole via rulemaking.
2.  Re-parole those whose periods of parole expired before they could receive an EAD. 
3. Automatically renew EADs upon re-parole. 
4. Eliminate the regulatory 150-day asylum EAD clock and the pause on running the clock for applicant-caused delays. 
5. Re-designate Nicaragua and Haiti for TPS status. 
6. Prioritize technological improvements to USCIS’s automated systems for processing EAD applications. 

“The byzantine EAD system has, for too long, caused real-world harm for newly arriving families. The changes above are just examples of the many steps DHS could take to help protect new arrivals from those harms, while also alleviating the burden on our states and their citizens. We appreciate your attention to this important matter,” concluded the senators.

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