New Work Permit Restrictions Could Force
DACA Recipients and Other Immigrants Out of the Labor Force

The Trump administration published a Notice of Proposed Rulemaking (NPRM) to impose new limitations on work authorizations for certain immigrants, including DACA recipients. Like other recent restrictions and eliminations of work authorization for immigrants already living and working in the U.S., this rule would further destabilize the workforce and harm the economy. These changes would also put more DACA recipients at even greater risk of losing their ability to work. The public comment period on this proposed rule is open until midnight on August 4th, 2026. Employers and other impacted stakeholders can submit a public comment.

The Issue

• The Department of Homeland Security (DHS) recently published a notice of proposed rulemaking (NPRM) to establish new restrictions on discretionary work authorization. Impacted individuals would include those who are required to apply to receive and renew work authorization and employment authorization documents (EADs) separately from their visa or immigration status, including DACA beneficiaries, humanitarian parolees, and individuals with removal orders.
• Some of the major changes for all discretionary categories include:
  • Instructing officers to deny applications on a broadened set of criminal history criteria, including non-conviction history and alleged gang/terrorist membership
  • Requiring biometrics from all initial EAD applicants, potentially for renewals as well
  • Automatically terminating work authorization in certain situations, including if an individual receives a final order of removal
• The rule would also impose much stricter requirements on humanitarian parolees, non-DACA deferred action recipients, and individuals with final orders of removal, including:
  • Requiring them to be employed or be seeking employment with an employer enrolled in E-Verify
  • Limiting discretionary work authorization periods to only one year
  • Requiring applicants to demonstrate ‘economic necessity’ (not clearly defined) to be granted work authorization
• This rule would significantly limit the discretionary power of USCIS agents by directing officials to view nearly any contact with the criminal justice system as a requirement for denial of work authorization, including:
  • Arrests, charges, indictments, and convictions for any criminal act, even if records have been sealed or expunged as part of pretrial diversion programs or other court agreements.
  • Admission of guilt even if the individual has never been arrested, charged, indicted, or convicted
  • Unreviewable “evidence” of gang or terror group association, such as tattoos and clothing.
• The proposal includes new regulatory language declaring that USCIS has “sole and unreviewable discretion” whether to grant work authorization, notably stronger language than under the current regulations.
• This rule would expand the Trump administration’s ability to target DACA recipients by creating new reasons to deny their work permits, with no recourse for appeal or review.

IMPORTANT NOTE: As of now, nothing has changed—this is only a proposal and does not make any immediate changes to work permit eligibility for parolees, DACA recipients, or anyone else who would be impacted if this went into effect.

WHY THIS MATTERS

• This proposal is part of a strategic effort by the Trump administration to make it harder for people to access and maintain their ability to work. Combined with other recent policy changes, like the $100,000 H-1B fee, reductions to the validity period of EADs for refugees and asylees, the end to automatic EAD renewals, and the cancellation of many TPS designations, this rule will be yet another devastating economic hit that will be felt by American families.
• According to DHS’s own estimates, the implementation of this rule will have exorbitant costs to the U.S. economy, including:
  • Up to $27.9 billion in total costs over the next 10 years. These costs include biometrics, administrative burdens, and estimated losses to businesses unable to replace workers rendered ineligible for employment authorization.
  • Up to $18 billion in lost federal tax revenue, and additional losses in state and local revenue over the next 10 years.
  • Up to $8.7 billion in lost earnings over the next 10 years, not including the reduction of profits and productivity for businesses.
  • DHS claims it is unable to calculate costs related to reliance interests of impacted populations, despite a legal responsibility to do so, driving the potential economic deficits of the rule even higher.
• The expansion of criminal history criteria will result in denials of work authorization based on unreliable and discriminatory interpretations. Gang membership data has been shown to be inaccurate and overly broad; at least 44 states, DC, and the federal government maintain so-called “gang databases” that designate hundreds of thousands of individuals as gang-affiliated based on dubious evidence – such as hearsay, tattoos, and innocuous social media activity.
• This rule would impose harsh penalties on individuals based on allegations that have never been proven, or in some cases, even argued in a court of law. Arrests and charges are heavily influenced by policing tactics and systemic bias, which disproportionately impact people of color who happen to live and work in overpoliced communities. Making criminal arrest the “prevailing factor” in this determination is counter to the reality of the criminal legal system where, in some jurisdictions, the majority of arrests do not end in criminal convictions.
• The rule would further the Trump administration’s attempts to shield its immigration policies from judicial review by asserting “sole and unreviewable” authority for USCIS agents to deny EAD applications in these categories. This goes further than the existing regulatory text, which only identifies USCIS’ “discretion.”
• The E-Verify mandate means that businesses that employ individuals with humanitarian parole, final orders of removal, or non-DACA deferred action would be forced to enroll in E-Verify in order to retain those employees; if they are not enrolled in good standing in the E-Verify program, the employees’ EAD renewal will be denied. Some experts allege that E-Verify has serious issues, including error rates and loopholes, that undermine its effectiveness and lead to negative outcomes. Congress has repeatedly declined to make E-Verify participation mandatory, which would only magnify existing problems if the program is made mandatory. The attempt in this rule to impose mandatory E-Verify on employers without Congressional approval and without addressing the major challenges of the program is an unfair and misguided imposition on U.S. employers
• The proposal includes a number of pieces that are confusing or not fully defined, including some areas where DHS claims future guidance will be issued, including the impact of final orders of removal on DACA recipients (more details below), how the biometrics requirement will apply to renewals, establishing “economic necessity” to obtain an EAD, and guidance on what will be used to determine “evidence of gang membership.” Deferring these details makes it impossible to assess the actual impact, including scope and cost, of this proposal.

IMPACT ON DACA RECIPIENTS

• In a time where DACA recipients are being forced out of status as a result of administrative policies, targeted enforcement, and Congressional inaction, this rule would add yet another barrier to their ability to maintain work authorization.
• Under the new policies, nearly any contact with the criminal justice system, including arrests, charges, and admissions of guilt, would result in denial of a DACA recipient’s work authorization renewal.
  • This would also include unverifiable evidence of gang or terrorist group membership, such as tattoos, clothing, or “pictures or statements which indicate the alien has adopted a group identity used to intimidate or create fear.”
• It is not clear if individuals who already have a final order of removal—including DACA recipients who have removal orders from when they were children— will have their renewal applications denied or their existing work permits automatically terminated under this rule.
  • The NPRM uses unclear and potentially contradictory language, in some places saying that “having” a final order of removal will result in automatic termination, and in other places saying termination will happen when an individual “receives” a final order of removal.
  • If applied retroactively, DACA recipients could have their work authorization automatically terminated, with no notification, despite having been protected, working, and contributing with DACA for more than a decade.
• It is also not clear if the rule would require new biometrics to be submitted with every renewal, forcing DACA recipients to undergo costly and time-consuming biometrics appointments almost annually. At the dangerously slow pace at which DACA renewals are currently being processed, this extra procedural hurdle would create yet another significant, unnecessary burden and put the continuity of their employment at great risk.

HOW BUSINESSES AND COMMUNITY LEADERS SHOULD RESPOND

• Leave a public comment through Regulations.gov explaining the harm this will cause to your business, community, and employees. Draw attention to the unreasonable burdens and costs on employers and workers alike of renewing work authorization annually, how this rule undermines the DACA policy, and the hardship that would be caused by mandatory E-Verify.
  • The National Immigration Law Center has published a template comment that you can use to get started, personalize and submit.
• Speak publicly and in your public comment about the benefits that individuals impacted by this rule have had on your industry and community, including those of Ukrainians and Afghan allies here on humanitarian parole.
• Bring attention to the turnover costs and lost productivity your business will incur if workers lose eligibility or there are delays in processing renewals at the newly mandated annual frequency.
  Identify areas where DHS has not provided enough clear and specific detail about how and for whom different policies will be implemented.
• Provide support to employees who would be impacted by this proposed rule, such as connecting them with legal assistance and keeping them updated on the status of the rule.