The Department of Homeland Security has published a Notice of Proposed Rulemaking in the Federal Register that would significantly restrict discretionary employment authorization for several categories of foreign nationals. Published on June 5, 2026, at 91 FR 34352, the proposed rule responds to Executive Order 14159 and reflects the current administration’s broader effort to tighten enforcement and narrow access to immigration benefits outside of congressionally established pathways.
Who Is Affected by This Proposed Rule?
The proposed rule targets three specific regulatory categories under 8 CFR 274a.12. The first category, (c)(11), covers individuals paroled into the United States temporarily for urgent humanitarian reasons or significant public benefit. The second, (c)(14), covers individuals who have been granted deferred action, including recipients of DACA. The third, (c)(18), covers individuals against whom a final order of removal exists and who have been temporarily released from ICE custody on orders of supervision. With one narrow exception, USCIS is proposing to eliminate discretionary employment authorization eligibility for the (c)(18) category entirely.
New Requirements Proposed Across All Three Categories
For those who would remain eligible, the proposed rule would impose new requirements. Applicants would need to affirmatively establish both economic necessity and that they warrant a favorable exercise of discretion. In addition, applicants seeking renewal or subsequent employment authorization in these categories would be required to work for or seek employment with an employer enrolled in E-Verify.
The rule also proposes universal biometrics requirements for all applicants under 8 CFR 274a.12(c), requiring identity validation before any employment authorization document is issued.
Criminal History as a Disqualifying Factor
One of the most consequential provisions in the proposed rule addresses criminal history. Under the proposal, individuals who have been arrested, charged, indicted, or convicted of any criminal act would generally not warrant a favorable exercise of discretion. The same applies to individuals who admit to committing a violent or dangerous crime, or for whom evidence exists that they are affiliated with a gang or terrorist organization. A narrow exception exists where significant countervailing public interests are present, such as cooperation with law enforcement.
Note that the proposed rule defines “arrested” to include charged, regardless of the ultimate disposition of the case.
Automatic Termination Provisions
The proposed rule would also introduce automatic termination triggers for employment authorization. USCIS has not yet finalized what specific triggering events would apply, but the intent is to create a mechanism for revoking authorization when certain conditions arise after the EAD has been issued.
Comment Deadline: August 4, 2026
This is a proposed rule, not a final rule. The public comment period closes on August 4, 2026. Comments must be submitted in English through the Federal eRulemaking Portal at regulations.gov, referencing DHS Docket No. USCIS–2026–0067. USCIS will not accept hand-delivered, mailed, or emailed comments, nor comments submitted on digital media storage devices.
What Should Affected Individuals Do Now?
Individuals currently holding employment authorization under categories (c)(11), (c)(14), or (c)(18), or those who may apply in the future, should consult with an experienced immigration attorney before this rule takes effect. While the rule has not been finalized, the direction of proposed policy is clear. Planning ahead is essential.
Ahluwalia Law Offices, PC represents clients nationally on complex employment authorization and adjustment of status matters. If you have questions about how this proposed rule may affect your situation, we encourage you to schedule a consultation at www.ahluwalialaw.com/consultations or call our Dallas office at 972-361-0606 or Houston at 713-600-4338.
FAQ
What is a discretionary Employment Authorization Document (EAD)?
A discretionary EAD is a work permit issued by USCIS under its regulatory authority, outside of the visa categories that automatically confer work authorization. Categories like parolees, deferred action recipients, and individuals on orders of supervision historically applied for work authorization under this framework.
Does this proposed rule affect H-1B, L-1, or O-1 visa holders?
No. This proposed rule specifically targets three discretionary categories: (c)(11) parolees, (c)(14) deferred action recipients, and (c)(18) individuals on orders of supervision after final removal orders. Lawful nonimmigrant visa holders whose work authorization derives from their visa status are not within the scope of this rulemaking.
Does an arrest without conviction disqualify someone under this proposed rule?
Under the proposal, yes. The rule defines “arrested” to include charged, regardless of whether a conviction resulted. This is a significant departure from how criminal history has traditionally been weighed in immigration benefit adjudication.
When would this rule take effect?
The rule is currently in the proposed rulemaking stage. A final rule would take effect only after the comment period closes, USCIS reviews public comments, and a final rule is published in the Federal Register with an effective date.
Can I submit comments on this proposed rule?
Yes. Comments are due by August 4, 2026, through regulations.gov, referencing DHS Docket No. USCIS–2026–0067.
This blog is intended solely for general informational and educational purposes. It does not constitute legal advice, nor does it create an attorney-client relationship between the reader and Ahluwalia Law Offices, PC. The legal information provided herein may not apply to your individual circumstances and is subject to change based on evolving immigration laws and policies. Readers are strongly encouraged to consult directly with a qualified immigration attorney for guidance tailored to their specific situation. Our front desk staff is not authorized to interpret legal information or provide legal advice beyond what is explicitly stated in this blog. They are also not permitted to assess eligibility, review case details, or respond to case-specific inquiries. Due to the high volume of inquiries and the sensitive nature of immigration matters, we cannot respond to questions or requests for legal analysis via phone or email unless a formal consultation has been scheduled. Please book an appointment with one of our attorneys if you require personalized legal assistance. This is attorney advertising
