Employment Eligibility for Migrants Released from DHS Custody at the Southwest Border

In the past three years, the United States has experienced record-high levels of migration across the U.S.-Mexico border. Generally, migrants who lack authorization to enter the country and present themselves at a port of entry (POE) or who enter the United States between POEs are processed for removal by the Department of Homeland Security's (DHS's) Customs and Border Protection (CBP). Migrants not processed for expedited removal (a streamlined process that allows DHS to remove migrants without a court hearing)—or who are placed in expedited removal and demonstrate a credible fear of return to their countries—may be processed for formal removal proceedings. Two CBP components process migrants for removal at the border: the Office of Field Operations (OFO) at POEs and the U.S. Border Patrol (USBP) between POEs. To process migrants for formal removal proceedings, OFO and USBP issue them Notice to Appear (NTA) charging documents, which the agencies file in immigration court.

In FY2023 (through August), CBP has issued more than 750,000 NTAs to migrants encountered at the Southwest border. During formal removal proceedings in immigration court, an immigration judge determines whether a migrant is removable and, if so, whether the migrant is eligible for a form of relief from removal, such as asylum. Although certain migrants must be detained while they await their removal proceedings, many have been released at DHS's discretion, on a case-by-case basis. Most migrants released at the Southwest border continue on to other U.S. destinations, including New York, Chicago, Denver, Houston, Washington, DC, and Boston, among others. New York City, for example, has received an estimated 104,000 migrants since spring 2022. Because of backlogs in immigration courts, some migrants can expect to wait years to have their cases adjudicated.

Some state and local governments, along with migrant-serving organizations, have expressed concern about their ability to meet the immediate humanitarian needs (e.g., food, shelter, and other services) of arriving migrants. Federal resources for states, localities, and organizations serving migrants—such as the Federal Emergency Management Agency's (FEMA's) Shelter and Services Program—are limited. Federal law makes it unlawful for employers to knowingly hire unauthorized workers; most migrants are not immediately eligible to work in the United States. States and localities have expressed urgency regarding migrants' ability to join local workforces so they may support themselves financially.

Media accounts indicate that many of the migrant arrivals pursuing asylum are eager to work in the United States while they await adjudication of their claims, and some employers view migrant arrivals as a potential solution to resolving labor shortages. In response, some lawmakers, states, and cities have called on the Biden Administration to expedite work authorization for released migrants.

Removal Processes and Eligibility for Work Authorization

Currently, many migrants encountered by CBP and who have been processed for formal removal proceedings are subsequently released from custody. In general, those released are migrants who have indicated an intent to apply for asylum. Those who have been granted humanitarian parole under 8 U.S.C. §1182(d)(5) and/or have filed an application for asylum may apply for an Employment Authorization Document (EAD, work permit). Some migrants may be eligible to apply for an EAD immediately upon release; others must wait at least six months before receiving work authorization (see Figure 1). OFO grants certain migrants—such as those whom it processes under the new CBP One appointment system—humanitarian parole along with the NTA. USBP, meanwhile, generally processes migrants it releases with an NTA "on their own recognizance," referred to in the law as conditional parole. Unlike humanitarian parole, conditional parole does not confer work authorization eligibility.

Individuals who have been granted humanitarian parole may apply for work authorization (under 8 C.F.R. §274a.12(c)(11)) immediately upon entry. Under the law, individuals who have applied for asylum and do not have a grant of humanitarian parole or other qualifying status may not be granted work authorization for six months after they have filed their application. Being issued an NTA itself does not qualify a migrant for work authorization—the individual must have filed their application for asylum in immigration court to be eligible to apply for an EAD. Once their application has been pending for 150 days, asylum applicants may apply for an EAD (Form I-765) with DHS's U.S. Citizenship and Immigration Services (USCIS).

Figure 1. Work Authorization Pathways for Released Migrants in Removal Proceedings

Source: CRS analysis.

Federal regulation requires USCIS to adjudicate EAD applications associated with pending asylum applications within 30 days. Currently, most (80%) I-765 forms filed based on a pending asylum application are processed within two months. Among I-765 forms filed associated with parole, 80% are completed within four months.

Challenges and Response by the Biden Administration

DHS reports that nationwide, only a "small percentage" of EAD-eligible persons have applied for work authorization. Some migrants face challenges in applying for and obtaining work authorization. Immigration attorneys and advocates have indicated that many migrants have a limited understanding of their EAD eligibility and the asylum process. Most individuals with pending removal cases do not currently have legal representation who could help them understand their eligibility for an EAD or file an asylum application. In addition to asylum applicants' six-month statutory wait, it may take additional time for migrants to have an initial hearing, obtain representation, and prepare asylum applications before they file them.

The Biden Administration has introduced procedures to facilitate employment for eligible migrants. A recent DHS announcement describes an initiative to inform humanitarian parolees through SMS and email notifications of their eligibility for EAD and reduce EAD processing time for migrants with humanitarian parole to 30 days.

In addition, the DHS Secretary has used his authority to extend and redesignate Venezuela for Temporary Protected Status (TPS), granting temporary relief from removal and immediate eligibility for work authorization to Venezuelan nationals who had already resided in the United States before July 31, 2023. Covered individuals must apply for both TPS and work authorization.