This article was update on March 5, 2024.

On September 27, 2023, U.S. Citizenship and Immigration Services (USCIS) issued a Policy Alert regarding employment authorization for noncitizens. The Policy Alert provides updated validity periods for certain Employment Authorization Documents (EADs) and clarifies the agency’s official position on employment incident to status or parole.

USCIS has updated Chapters 1, 2 and 4 of its Policy Manual to reflect these changes. This guidance, contained in Volumes 3 and 10 of the Policy Manual, is effective immediately, and applies to Form I-765 applications that are currently pending or that were filed on or after September 27, 2023.

USCIS states that the guidance contained in the Policy Manual is controlling and supersedes any related prior guidance. 

Below are some key points from the guidance.

1. USCIS is increasing the maximum validity periods to up to 5 years for EADs issued to the following categories:

  • asylees and refugees (currently subject to a maximum 2-year validity period)
  • noncitizens granted withholding of deportation or removal (currently subject to a maximum 2-year validity period)
  • noncitizens with pending applications for asylum or withholding of removal (currently subject to a maximum 2-year validity period)
  • noncitizens with pending applications for adjustment of status under INA 245 (currently subject to a maximum 2-year validity period)
  • noncitizens paroled as refugees (currently subject to a maximum 1-year validity period)
  • noncitizens seeking suspension of deportation or cancellation of removal (currently subject to a maximum 1-year validity period)

2. DHS has determined as a matter of policy that certain Afghan parolees and certain Ukrainian parolees are employment authorized incident to parole.

March 5, 2024 Update:

USCIS clarified that Congress only mandated that Ukrainian citizens and their immediate family members who were paroled between February 24, 2022 and September 30, 2023 are employment-authorized incident to their parole status for the first 90 days of their parole. Those who were paroled starting October 1, 2023 must apply for an Employment Authorization Document (EAD) in order to work lawfully, and they must present as evidence of their employment authorization a valid EAD.

USCIS stated in its September 2023 Policy Alert:

“Certain Afghan and Ukrainian parolees are employment authorized incident to parole as a matter of policy, which aligns with the spirit of legislation that provides that these parolees “shall be eligible for . . . other benefits available to refugees . . . .” 

USCIS has added the following language to its Policy Manual:

“DHS has decided as a matter of policy to provide the benefit of employment authorization incident to parole akin to what is normally accorded to refugees (as well as a no-fee initial and replacement of an initial Employment Authorization Document) to certain Afghan parolees and certain Ukrainian parolees so that they receive similar treatment as refugees, which aligns with the spirit of legislation that states that certain Afghan parolees and certain Ukrainian parolees ‘shall be eligible for . . . other benefits available to refugees . . . .’ See Section 2502(b) of the Extending Government Funding and Delivering Emergency Assistance Act, Pub. L. 117-43 (PDF), 135 Stat. 344, 377 (September 30, 2021), amended by Section 1501 of Division M of the Consolidated Appropriations Act of 2023, Pub. L. 117-328 (PDF), 136 Stat. 4459, 5189 (December 29, 2022), and Section 401(b) of the Additional Ukraine Supplemental Appropriations Act, Pub. L. 117-128 (PDF), 136 Stat. 1211, 1218 (May 21, 2022).”

USCIS has updated Chapter 1 – Purpose and Background and Chapter 4 – Adjudication with similar language.

USCIS has updated Chapter 2 – Eligibility Requirements to specifically enumerate “Certain Afghan parolees and certain Ukrainian parolees” as a category listed under Part A as “Authorized to Work for Any Employer Based on Status or Circumstances.” This is in contrast to “Most parolees” who are listed under Part C as “Noncitizens Required to Apply for Employment Authorization” (except that entrepreneurs paroled under 8 CFR 212.19 are employment authorized with a specific employer incident to their parole).

However, Afghan and Ukrainian parolees are listed in Section 1 of Part A as “Noncitizens Who Must Apply for Documentation of Employment Authorization.” USCIS explains:

“In general, most noncitizens authorized to work for any employer based on their status or circumstance must apply to USCIS for a document evidencing employment authorization.”

Thus, it is important to note that Ukrainian parolees who are recognized as being employment authorized incident to parole must still apply for an EAD in order to show evidence of their employment authorization after the first 90 days of hire.

3. USCIS clarifies that Form I-94 (Arrival/Departure Record) can be used as both evidence of status and employment authorization for certain noncitizens who are employment authorized incident to status or circumstance.

USCIS has updated Chapter 2 – Eligibility Requirements to clarify that Ukrainian parolees with a UHP class of admission, as well as Ukrainians with a DT class of admission who are paroled by September 30, 2023, may use an unexpired I-94 as evidence of employment authorization:

“An unexpired Form I-94 is an acceptable receipt for Form I-9 that establishes identity and employment authorization for a period of up to 90 days from the date of hire (or in the case of reverification, the date employment authorization expires) for Ukrainian parolees with a class of admission of UHP, Afghan parolees with a class of admission of OAR, Ukrainian noncitizens paroled between February 24, 2022 and September 30, 2023 whose Form I-94 indicates Ukraine as the country of citizenship and contains a class of admission of DT, and Afghan noncitizens paroled on or after July 31, 2021 whose Form I-94 lists Afghanistan as the country of citizenship and contains a class of admission of PAR.” 

For guidance USCIS has given employers regarding this document as acceptable DHS-issued evidence of employment authorization for Form I-9 completion, see Handbook for Employers (M-274), Section 4.4, Acceptable Receipts.

4. USCIS will continue to offer certain Afghan parolees and certain Ukrainian parolees a no-fee initial EAD and a no-fee replacement of an initial EAD.

In addition to recognizing employment authorization incident to parole, DHS has determined that a no-fee initial and replacement of initial EAD is a benefit “akin to what is normally accorded to refugees.”

Thus, USCIS confirmed it will continue to offer certain Afghan and Ukrainian parolees a no-fee application for an initial EAD and a no-fee replacement of an initial EAD.

More information can be found in the full USCIS Policy Alert.